Delhi District Court
M/S. L'Oreal vs . Mr. Pappu & Anr. on 24 January, 2015
IN THE COURT OF SH. DEVENDER KUMAR, ADJ-04, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI.
TM/ CS No. 49/14
M/s. L'oreal Vs. Mr. Pappu & Anr.
24.01.2015
ORDER :
Vide this order, I shall dispose of an application under Order 7 rule 10/11 CPC moved on behalf of defendant no. 2.
1. Arguments on application heard. It is submitted by counsel for defendant No. 2 that the plaintiff has not been carrying on any business within the jurisdiction of this court and plaintiff being a foreign company has no business to file this suit at New Delhi and this court has got no territorial jurisdiction. It is further submitted that merely advertisement in a journal or paper or preferring of application or even registration of trademark cannot confer jurisdiction on the court and also cause of action to file a case. It is further submitted that as per law laid down by Hon'ble Supreme Court of India in Dodha House case, merely having a showroom by the plaintiff within the jurisdiction of the court is not sufficient to confer jurisdiction on this court and plaintiff must have been carrying on said business under its ownership and control only then its amount to carry on business. It is further submitted that this court has no jurisdiction to entertain this suit and suit ls liable to be rejected.
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2. On the other hand, Ld. Counsel for plaintiff has strongly opposed the submissions and has submitted that the plaintiff has already averred in paras no. 29 & 43 of the plaint that the plaintiff through its subsidiary is carrying on its business at Delhi and within the jurisdiction of this court. It is further submitted that the plaintiff has many showrooms within the jurisdiction of this court and even has been promoting its brand here and this suit is well maintainable. It is further submitted that even it is a matter of trial and not a case of rejection of plaint. It is further submitted that this suit is maintainable and this application is liable to be dismissed.
3. I have heard the arguments and perused the record. It is settled proposition of law that the rejection of plaint is to be seen just on the basis of allegations levelled in the plaint and supporting documents. Rejection of plaint has nothing to do with the defence of the defendant. In this case, the plaintiff has alleged in paras 29 & 43 of the plaint about carrying on the business and having company owned business entities within the jurisdiction of this court. Ld. Counsel for the defendants has heavily relied upon a judgement titled M/s Lakhan Pal Shyam Kumar V. M/s. Ram Prasad Gupta & Anr., CS (OS) 2208/2006. On the other hand, Ld. Counsel for the plaintiff has relied upon 2011 (48) PTC 240 (Del) titled L'Oreal V. Dushyant Shah based on the judgment of Hon'ble Supreme Court of India pronounced in Dodha House V. S.K. Maingi (2006) 9 SCC 41. As per this judgment, the Hon'ble Supreme Court of India has distinguished having a business entity within the jurisdiction of this court, "control and business" and term "carrying on the business". However, this judgement has been considered by Hon'ble High Court of delhi in many cases and this judgement has been distinguished on various TM / CS No. 49/14 M/s. L'oreal Vs. Mr. Pappu & Anr. 2/3 occasions. The plea of the defendants is based on provision of Section 20 CPC, whereas this suit has been filed under Section 134 (1) of Trade Mark Act, 199 which is a special law and confer the jurisdiction on the courts where plaintiff carries on its business activities as well. The judgments relied by the plaintiff, 2005 (30) PTC 28 (Del), 2009(39) PTC 358(Delhi.) (DB), RFA no. 17/2005 2011 (48) PTC 240 (Delhi) and FAO 198/2013 are dealing with the said special law proposition of Section 134 (1) of Trade Marks Act and has held that averments made in the plaint and having subordinate office within the jurisdiction of this court is sufficient compliance of Section 134 (1& 2) of Trade Marks Act. Even the judgment titled Suresh Chand Purwar (Karta) V. Vivek Purwar & Ors., FAO 198/2013 passed on the basis of these judgements has held the same proposition which has been upheld by the Hon'ble Supreme Court of India vide SLP appeal no. 14400/2014 and has also become a law on this point. As such, in any manner, application of the defendant no. 2 is not maintainable and whatever defence has been taken by the defendant is a matter of trial and is not a case of rejection of plaint, accordingly application of defendant No. 2 is dismissed with cost of Rs. 3,000/-.
Dated: 24.01.2015 (Devender Kumar)
Announced in the open Court. ADJ-04, New Delhi District,
Patiala House Courts, Delhi.
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