Karnataka High Court
M/S Dhrithi Surgical Solutions Pvt Ltd vs M/S Sumukha Surgicals India Pvt Ltd on 13 June, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.16035 OF 2021 (IPR)
BETWEEN:
M/S. DHRITHI SURGICAL SOLUTIONS PVT. LTD.,
NO. 355/8, D.NO.198
BELKE VILLAGE AND POST
BHATKAL TALUK
UTTARA KANNADA DISTRICT - 581 320
REP. BY ITS MANAGING DIRECTOR
MR. SHARATH KUMAR SHETTY
S/O. SADASHIVA SHETTY
AGED ABOUT 35 YEARS
...PETITIONER
(BY SRI. GOVINDARAJ.K. JOISA, ADVOCATE)
AND:
M/S. SUMUKHA SURGICALS INDIA PVT. LTD.,
KANCHIKAN ROAD,
UPPUNDA, KUNDAPURA TALUK
UDUPI DISTRICT - 576 232
REP. BY ITS MANAGING DIRECTOR
MR. SURESH SHETTY
S/O. PRABHAKAR SHETTY
AGED ABOUT 48 YEARS
...RESPONDENT
(BY SRI. HARIKRISHNA S.HOLLA, ADVOCATE )
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
REJECTING THE APPLICATION FILED UNDER ORDER VII RULE
10 OF CPC DATED 17.06.2021 ANNEXURE-A PASSED BY
PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI IN
O.S.01/2020 AND CONSEQUENTLY, ALLOW THE IA NO.II FOR
RETURN THE PLAINT TO THE RESPONDENT SINCE THERE IS
NO TERRITORIAL JURISDICTION AND ETC.
THIS W.P. COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
This petition by the defendant in O.S.No.1/2020 on the file of the Prl. District Judge, Udupi District, Udupi, (for short the 'Trial Court') is directed against the impugned order on I.A.No.II passed by the trial Court whereby the said application filed by the petitioner / defendant seeking return of the plaint filed by the respondent / plaintiff on the ground of lack of territorial jurisdiction was rejected by the trial Court.
2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.
3. The material on record discloses that the respondent / plaintiff instituted a suit in O.S.No.4/2020 on the file of the Prl. District Judge, D.K., Mangaluru for permanent injunction and other reliefs alleging infringement and passing of by the petitioner / defendant of the trade mark and goods of the respondent / plaintiff. In the said suit, the petitioner / defendant filed an application under Order VII Rule 10 CPC seeking return of the plaint on the 3 ground that the District Court at D.K., Mangaluru, did not have territorial jurisdiction to adjudicate / decide the said suit. By order dated 06.11.2020, the District Court, D.K., Mangaluru, returned the plaint and directed the respondent / plaintiff to present the same before the jurisdictional Court.
4. Pursuant to the aforesaid order passed in O.S.No.4/2020 referred to supra, the respondent / plaintiff took return of the plaint and re-presented it before the trial Court at Udupi. Even in the said suit, the petitioner / defendant filed an application - I.A.No.2 seeking return of plaint on the ground that the trial Court did not have territorial jurisdiction to adjudicate / decide the said suit which would have to be filed before the District Judge at Kundapura, which had territorial jurisdiction to decide the suit. The said application - I.A.No.II having been opposed by the respondent / plaintiff, the trial Court proceeded to pass the impugned order rejecting the said application, aggrieved by which, petitioner / defendant is before this Court by way of this petition.
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5. A perusal of the material on record including the impugned order clearly indicates that it was the specific contention of the petitioner / defendant that since there exists Court of the Additional District Judge at Kundapura taluk, where the respondent / plaintiff was carrying on business, in the light of Section 134 (2) of the Trade Marks Act, 1999 (for short, 'the said Act of 1999'), the trial Court at Udupi, did not have territorial jurisdiction to adjudicate / decide the suit. On the other hand, apart from other contentions urged by the respondent / plaintiff, it was contended that it was carrying on business within the jurisdiction of Udupi District and since the trial Court was a District Court having jurisdiction over the entire Udupi District, it cannot be said that the trial Court did not have jurisdiction to decide the instant suit. It was also contended that in addition to instituting the suit alleging infringement of its trade mark, the respondent / plaintiff had also alleged acts passing of committed by the petitioner / defendant and consequently, the jurisdictional bar contained in Section 134 (2) of the said Act of 1999 was not applicable to the said claim of passing of put-forth by the respondent / 5 plaintiff and consequently, on this ground also, the trial Court at Udupi had territorial jurisdiction to adjudicate / decide the suit. It was therefore contended that there was no merit in the application and the same was liable to be dismissed.
6. A perusal of the impugned order will indicate that the trial Court came to the conclusion that in the light of the undisputed fact that the respondent / plaintiff was carrying on business within the territorial jurisdiction of Udupi District over which the trial Court had jurisdiction coupled with the fact that Kundapura was only a taluk and not a District and in the absence of any provision, order, circular, etc., which excluded the territorial jurisdiction of the trial Court (District Court) at Udupi and conferred exclusive jurisdiction on the Additional District Judge at Kundapura, the trial Court (District Court) at Udupi had jurisdiction to adjudicate / decide upon the instant suit and consequently, the application - I.A.No.II filed by the petitioner was liable to be rejected. While arriving at the said conclusion, the trial Court held as under:
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"9. Regarding jurisdiction, in paragraph No.14 of the plaint the plaintiff has asserted that the cause of action arose to the suit on 01.03.2019 when the defendant adopted DHRITHI and subsequently within the jurisdiction of this Court where the plaintiff is carrying on business within the jurisdiction of this Court.
10. In the trademark application No.2369861 dated 27.01.2014 the address of the Proprietor is noted as Sumukha Surgicals India Private Limited, Kanchikan Road, Uppunda, Kundapura Taluk, Udupi District.
11. In the income tax return acknowledgment the address of the plaintiff is noted as Sumukha Surgical India Pvt. Ltd., Kanchikan Road, Uppunda Post, Kundapura Taluk, Udupi District.
12. In the plaint the plaintiff has noted the address of the defendant as M/s. Dhrithi Surgical Solutions Pvt. Ltd., Door No.5-10-1042/8, Alke, Kambla Cross Road, Mangalore- 575003.
13. In the written statement the defendant noted his address as Sy.No.355/8, D.No.198, Belke Village and Post, Bhatkal Taluk, Uttara Kannada District.
14. MSME (Ministry of Micro, Small & Medium Enterprises) Certificate shows that the defendant has maintained his company at Sy.No.355/8, Belke Village and Post, Bhatkal Taluk, Uttara Kannada District, Karnataka.
15. In this case there is no dispute about the address and place where the defendant is maintained / conducting business activities. The grievance of the defendant is that the Addl. District and Sessions Court, 7 Kundapura is only having territorial jurisdiction to decide the dispute on the ground that the registered office of the plaintiff is situated within the territorial jurisdiction of Kundapura Taluk.
16. Section 134 of Trade Marks Act, 1999 with respect to territorial jurisdiction of a Court which had jurisdiction to decide the suit filed alleging infringement of Trade Mark reads as under:
"134. Suit for infringement, etc., to be instituted before District Court.--
(1) No suit--
(a) for the infringement of a registered trade mark;
Or
(b) relating to any right in a registered trade mark; or
(c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.
(2) For the purpose of clauses (a) and (b) of sub-section (1), a "District Court having jurisdiction"
shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where 8 there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain."
17. There is no dispute about existence of Addl. District and Sessions Court at Kundapura. However as on today neither circular nor notification issued by the Competent Authority conferring jurisdiction to deal with the matters concerned to either IPR or Commercial Court Act or any other special law on the Addl. District and Sessions Court, Kundapura are furnished by either parties.
18. Office also not furnished documents i.e. circular or notification issued by competent authority excluding jurisdiction of this Court to deal with the matter concerned to Trade Marks Act or Copy Right Act pertaining to Kundapura Taluk.
19. In the lengthy argument learned Advocate appearing for the plaintiff asserted that the plaintiff is carrying on business within the jurisdiction of this Court i.e. at Udupi. In this case at this stage there are no evidence to show lack of territorial jurisdiction of this Court to deal with matter concerned to Trade Marks Act or Copy Right Act over Kundapura Taluk.
20. The learned Advocate appearing for the plaintiff requested to terminate Vakalath of the learned advocate appearing for the defendant asserting that learned advocate appearing for the defendant has filed affidavit in support of I.A.No.II. Record shows that in support of I.A.No.II learned advocate appearing for the defendant has not filed any affidavit on behalf of the defendant, however advocate for the defendant filed memorandum of facts on the basis of information 9 provided by the defendant. Hence, the question of terminating of Vakalath of learned Advocate appearing for the defendant who filed memorandum of facts does not arise.
21. In view of non-availability of the documents about exclusion of territorial jurisdiction of this Court to deal with the matter concerned to intellectual property right (Trade Mark Act, Copy Right Act etc.,) of Kundapura Taluk. I have inferred that judgments cited on behalf of the defendant with respect to territorial jurisdiction point are not applicable.
22. Hence, I came to the conclusion that submissions made on behalf of the defendant and documents available in the file as on today are not sufficient to conclude that this Court is lacking territorial jurisdiction to decide the suit.
23. Hence, I came to the conclusion that the defendant has failed to make out sufficient ground to return the plaint as sought in the application.
24. At this stage, it is clarified that if the defendant is having either circular or notification or any other document issued by Competent Authority excluding territorial jurisdiction of this Court with respect to the matters concerned to Trade Marks Act or Copy Right Act of Kundapura Taluk, he is at liberty to produce those documents and seek the suitable orders. Hence, I answer point No.1 in the negative and pass the following:
ORDER I.A.No.II filed under Order VII Rules 10 r/w Section 151 of C.P.C. is hereby rejected. There is no order as to costs."10
7. As can be seen from the aforesaid findings, the trial Court has considered and appreciated the entire material on record including the provisions contained in Section 134 of the said Act of 1999 and has come to the correct conclusion that the trial Court at Udupi had territorial jurisdiction to decide the suit. Even otherwise, a perusal of the plaint averments will indicate that in addition to putting forth a claim of infringement which is covered by Section 134(1)(a) and (b) r/w Section 134 (2) of the said Act of 1999, the respondent / plaintiff has also put-forth a plea of passing of which is not covered by the said provisions but, covered by Section 134(1)(c) of the said Act of 1999 to which the bar of territorial jurisdiction contained in Section 134(2) of the said Act of 1999 does not apply. Viewed from this angle also, I am of the considered opinion that the trial Court (District Court) at Udupi has territorial jurisdiction to adjudicate / decide the instant suit.
8. The aforesaid facts and circumstances clearly indicate that the trial Court was fully justified in coming to the conclusion that the trial Court (District Court) at Udupi 11 had territorial jurisdiction to adjudicate / deicide the instant suit and as such, the impugned order passed by the trial Court rejecting I.A.No.II does not suffer from any illegality, infirmity or error of jurisdiction warranting interference by this Court in the present petition, particularly in the light of the restricted scope / power of this Court under Article 227 of the Constitution of India, as held by the Apex Court in the case of Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423.
Accordingly, I do not find any merit in the petition and the same is hereby dismissed.
Sd/-
JUDGE KA/SV