Delhi District Court
The vs M/S. Anantam' Decided By Hon'Ble High on 15 April, 2017
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
CS No. 49/15
New No. 11906/16
M/s. Anjali Trading Corporation
Versus
Ashirvad Pipes Pvt. Ltd.
ORDER
15.04.2017
1. The defendant no.1 filed two applications under Order VII Rule 10 read with Section 151 CPC for return of the plaint and another under order VII Rule 11 read with Section 151 CPC for rejection of the plaint.
2. The brief facts necessitated the filing of the application under Order VII Rule 10 CPC are as under:
3. It is stated that the plaintiff has filed a composite suit under the Trade Marks Act combining two separate causes of action, one relating to the claim of infringement of its purported statutory rights in the mark ASHIRVAD and the other relating to the claim of passing off. The applicant/ defendant no.1 has filed the present application on the premise that this Court lacks the territorial jurisdiction to entertain, try and adjudicate the present suit.
4. It is stated that a suit for infringement can be filed under Section 134 of the Trade Marks Act at a place where the plaintiff resides or carries on business or under Section 20 CS No. 49/15 (New No. 11906/16) Page No. 1/10 CPC where the defendant resides or carries on business or where the cause of action has arisen. However, a suit for passing off, which is a common law right and is governed under the law of torts, can only be filed under Section 20 CPC i.e. where either the defendant resides/carries on business or the cause of action has arisen. It is stated that a plaintiff cannot invoke jurisdiction of a court in a case where two distinct causes of action have been joined, unless that court has jurisdiction to entertain and try the suit pertaining to both the causes of action. It is stated that the present suit is undisputedly a composite suit for infringement as well as passing off. As such, the plaintiff can invoke jurisdiction of this Court only if this Court has the jurisdiction to entertain and try both the causes of action of infringement as well as of passing off. It is further stated that without prejudice and in addition to the contention of the applicant/ defendant no.1 that the plaintiff's claim of infringement is barred under the provisions of Sections 28 (3) and 30 (2) (e) of the Trade Marks Act, and that the present suit is only a suit for passing off. It is stated that this Court lacks the territorial jurisdiction to entertain and try the claim of passing off, which can be filed only at the place either where the defendant resides/ carries on business or the cause of action has arisen. The applicant/ defendant no.1 neither resides nor carries on business within the territorial jurisdiction of this Court.
5. It is further stated that the plaintiff has clothed jurisdiction upon this Court by making a bald averment in the plaint that the applicant/ defendant no.1 is passing off its products as those of the plaintiff in Delhi. It is not even the case of the plaintiff that the applicant/defendant no.1 sells CS No. 49/15 (New No. 11906/16) Page No. 2/10 the goods in question i.e. pumps in Delhi or that these goods are otherwise available in Delhi. It is stated that perusal of plaint and accompanying documents would manifestly reveal that there is not even a shred of evidence to support the plaintiff's bald averment that the defendants are passing off their products in Delhi.
6. The applicant/ defendant no.1 seeks to allow the present application and return the plaint and cost of the present proceedings be awarded to the applicant/ defendant no.1.
7. Plaintiff filed the reply to the application and taken the preliminary objections that the present application is not maintainable. It is stated that as per information derived from internet, office of the defendant no.1 is at 4 th Floor, Ravi Raj Market, 3564/410, Hakim Baka Street, Khush Dil, Chandni Chowk, New Delhi and there are number of dealers are within the territorial jurisdiction of this Court with whom the defendant no.1 carrying its business.
8. It is further stated that there are several other channel partners of the defendant no.1 are selling the products of defendant no.1 on commission basis, managed and controlled by its Delhi office only, thus the cause of action as mentioned in the plaint is well within the territorial jurisdiction of this Court. It is further stated that the plaintiff is carrying its business within the territorial jurisdiction of this Court as required under Section 134 as well as cause of action as envisaged under Section 20 of CPC is well established and suit is very much maintainable as per Order II CS No. 49/15 (New No. 11906/16) Page No. 3/10 Rule 3 CPC. It is stated that the plaintiff has got registered its mark prior to the defendant no.1 and despite the fact, defendant no.1 was allowed to register its trademark later reflects that registration of defendant no.1 was not correctly granted in accordance with the Trade Mark Rules, 2002.
9. In reply on merits, the plaintiff has denied the averments made in the application and reiterated the submissions made in the preliminary objections.
10. The defendant no.1 has also filed rejoinder to the reply filed by plaintiff. The defendant no.1 has denied the averments made in the reply and reiterated the averments made in the application. It is stated that the entire reply filed by the plaintiff is based purely on surmises and conjectures which are without any basis and merits. There is not even a shred of evidence filed by the plaintiff to support the bald averments made in the reply. It is further stated that defendant no.1 has no office in New Delhi as stated by the plaintiff in its reply.
11. The brief facts necessitated the filing of the application under Order VII Rule 11 CPC are as under:
12. It is stated that the plaintiff has filed a composite suit under the Trade Marks Act, 1999 combining tow separate causes of action, one relating to infringement of its purported statutory rights in the mark ASHIRVAD and the other relating to passing off. The suit is barred under the provisions of Sections 28 (3) and 30 (2) (e) of the Trademarks Act. It is stated that the present suit inasmuch as it relates to the relief CS No. 49/15 (New No. 11906/16) Page No. 4/10 of infringement of the plaintiff's trademark is barred under the provisions of Sections 28 (3) and 30 (2) (e) of the Trademarks Act, 1999. The plaintiff has filed the present suit claiming infringement of its identical trademark ASHIRVAD on the basis of its alleged trademark registration in Class 7. Further, the plaintiff has admitted in the plaint that the defendant no.1 is the registered proprietor of the mark ASHIRVAD under No. 1276664 in Class 7. Thus, as per the plaintiff's own case, both the plaintiff as well as the defendant no.1 are the registered proprietors of the mark ASHIRVAD in Class 7. As per Sections 28 (3) and 30 (2) (e) of the Trademark Act, a registered proprietor cannot claim infringement of its trademark against another registered proprietor of the same or similar trademark.
13. It is further stated that the suit is barred by the provisions of Order 1 Rule 3 CPC as it suffers from mis-joinder of parties. It is stated that it is neither the case of the plaintiff that the defendant no.1 and defendant no.2 are related to each other or work in connivance with each other nor that the right to relief against the defendants arises out of the same acts or transactions of the defendants. A plain reading of the plaint would unequivocally show that there is no common question of law or facts involving the defendants. As evident from the plaint, last year defendant no.1 had filed a civil suit for trademark infringement and passing off against defendant no.2 herein before the City Civil Court at Bangalore. The said suit was decreed in view of the undertaking given by the defendant no.2, who acknowledged the proprietory rights of the defendant no.1. Thus, is is unambiguously evident that the defendant no.1 and 2 have been clearly mis-joined in the CS No. 49/15 (New No. 11906/16) Page No. 5/10 present suit. It is further stated that there is no nexus whatsoever between defendant no.1 and defendant no.2.
14. It is further stated that the suit is barred under Section 135 of the Trademarks Act. As per this Section, a plaintiff is an infringement or passing off action may claim the relief of either damages or accouters of profit, but cannot seek both the reliefs simultaneously.
15. It is further stated that suit is barred under the provision of Order 6 Rule 15 CPC. A bare perusal of the plaint makes it clear that it does not contain any verification as mandated under Section 6 Rule 15 CPC.
16. In view of the above submission, the defendant no.1 seeks rejection of plaint.
17. Plaintiff filed reply to the application and taken the preliminary objection that the application is not maintainable and liable to be dismissed. It is stated that the plaintiff firm using the product Electric Motors, Pumps of all kinds like Tulu Pump, Submersible Pump, Monoblock pump since 14.05.1998 and got registered its mark vide registration no. 1153260 vide application dated 25.11.2002 while defendant no.1 applied for registration on 05.04.2004 and got registered the same vide registration no. 1276664 and 1276665. Defendant no.1 admitted in its application about the using of its produce since 01.08.2001. It is stated that despite the fact defendant no.1 was allowed to register its trade mark, reflects that registration of defendant no.1 was not correctly granted in accordance with the Trade mark CS No. 49/15 (New No. 11906/16) Page No. 6/10 Rules, 2002. Plaintiff cited the case titled 'Mrs. Rajnish Aggarwal & Ors. Vs M/s. Anantam' decided by Hon'ble High Court on 26th November, 2009. According to which the defendant cannot take the benefit of Section 28 (3) and 30 of the Trade Marks Act, 1999.
18. It is further stated by plaintiff that at the time of taking of printout of the pleadings/suit, the verification clause was been left inadvertently due to page setting. It is stated that the plaint is supported with affidavit. However, the plaintiff is filing an application under Order VI Rule 17 CPC for amendment of plaint only to the extent of insertion of verification clause.
19. It is further stated by the plaintiff that the fact admitted under the application that under clause 3 of the application that the defendant no.2 acknowledged the prorietary rights of the defendant no.1 in the trademark ASHIRVAD. As per information derived the defendant no.1 caused to ceased the goods etc. of the defendant no.2 worth lacs of rupees and is in the custody of the defendant no.1 and has also taken damages from the defendant no.2, on which the plaintiff got entitlement legally, therefore, relation between defendant no.1 and defendant no.2 is prima-facie clear and yet to prove by leading cogent evidence.
20. On merits, the plaintiff has denied the averments made in the application by the defendant no.1 as wrong and incorrect.
CS No. 49/15 (New No. 11906/16) Page No. 7/1021. Defendant no.1 also filed rejoinder to the reply filed by plaintiff to the application under Order 7 Rule 11 CPC, in which the averments made in the reply are denied and averments made in the application are reiterated.
22. I have heard Ld. Counsel for the defendant no.1 Sh. Deepak Gogia and Ld. Counsel for the plaintiff Sh. Alok Kumar and perused the record.
23. The plaintiff as per averments in the plaint set up a case of infringement and passing of trademark against the defendants. The plaintiff being proprietorship concerned having its office at Nangloi, New Delhi and owned by sole proprietor Sh. Sachin Kumar Singh (hereinafter referred to as 'plaintiff company'). The plaintiff company engaged in the manufacturing, marketing and selling of various description of motors and pumps by the trade name ASHIRVAD. The trademark ASHIRVAD in relation of goods in Class 7 was applied for registration with Registrar of Trademarks after about 4-5 years since the name and style was changed from predecessor to Anjali Trading Corporation and goods gained the momentum in the market. The registered proprietor assigned the trademark on 27.06.2012 to the plaintiff. As per plaintiff's case, the defendant no.1 is based at Bangluru, Karnataka and defendant no.2 is based at Ahmdabad, Gujarat. According to plaintiff, the goods are produced in Delhi and vended in several parts of India. There is a certificate of ISO 9001 : 2008. The defendants are vending their products under the trademark ASHIRVAD. There are general averments with regard to passing off goods by the defendants to the plaintiff. However, there is no specified CS No. 49/15 (New No. 11906/16) Page No. 8/10 territory mentioned in the whole plaint. There is no document filed on record, such as invoices, bills whereby the defendants are selling the similar goods within territory of Delhi.
24. According to the written statement of defendant no.1, the claim of passing off is not maintainable before this court. Admittedly, defendant no.1 and defendant no.2 are not carrying on business within the territorial jurisdiction of this court. The defendant no.1 is also registered proprietor of trademark ASHIRVAD Clause 7, registered in the year 2012 and having business territory within Bangluru, Karnataka. Therefore, as per Section 28 (3) and 30 (2) (e) of Trademark, one registered trademark concern is desisted from taking action of infringement against the other registered trademark company. Specially in the circumstances where the business territory is totally different. In the plaint, para no. 22 and 23 show the cause of action but not specified the date, product or discovery of any product of defendants has been mentioned in Delhi. Therefore, in my considered opinion, where plaintiff had made bald averments and cause of action and applying the above said provisions of Trademarks Act, the plaintiff is devoid of any cause of action and this court has no territorial jurisdiction as well. As per pleadings, it also emerges out that the present suit filed by plaintiff is a counter blast to a suit filed by defendant no.1, wherein the plaintiff was a party at Bangluru. In the circumstances of the case, plaint is liable to be rejected. My view is supported by the judgment of S. Syed Mohideen vs. P. Sulochana Bai, 2015 (2) RCR (Civil) 810 and Krishan Industries vs. Kimti Lal Sharma & Another, 2009 (41) PTC 551 (Del.).
CS No. 49/15 (New No. 11906/16) Page No. 9/1025. In view of my discussion and observation made herein above, both the applications of the defendant no.1 i.e. under Order VII Rule 10 CPC and under Order VII Rule 11 CPC are allowed. Plaint is rejected.
26. File be consigned to Record Room.
Announced in the open court today the 15th April, 2017 (Sanjay Kumar) ADJ-02,West/Delhi 15.04.2017 CS No. 49/15 (New No. 11906/16) Page No. 10/10