The Trustees Of Princeton University vs The Vagdevi Educational Society & Ors on 26 August, 2022

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Delhi High Court - Orders

The Trustees Of Princeton University vs The Vagdevi Educational Society & Ors on 26 August, 2022

1. This is an application filed under Order VII Rule 10 of the Code of Civil Procedure, 1908 (in short, 'CPC') on behalf of the defendant nos. 1 to 7, challenging the territorial jurisdiction of this Court to entertain the present suit.

2. Issue notice. Notice is accepted by Ms.Nancy Roy, the learned counsel on behalf of the plaintiff. She waives her right to file any reply to the application.

3. With the consent of the learned counsels for the parties, the application is taken up for hearing.

Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44

Submissions on behalf of the defendants

4. Mrs.Avnish Ahlawat, the learned counsel for defendant nos. 1 to 7 submits that this Court would lack territorial jurisdiction to entertain the present suit inasmuch as the defendants have no office or institution in Delhi; the defendants are based only in the State of Telangana; the website of the defendants require the students interested in taking admission to personally appear in the institutions situated in the State of Telangana; and the defendants do not offer any online courses, degree or Masters Programmes either on its website or physically in Delhi.

5. In support of her submissions, she places reliance on the judgment of this Court in Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy & Anr., 2009 SCC OnLine Del 3780.

Submissions on behalf of the plaintiff

6. On the other hand, the learned senior counsel for the plaintiff submits that not only the defendants were offering online classes, but are also offering online web seminars (in short, 'webinars'), wherein certificates are issued to the participants. He submits that the services of the defendants are also advertised by them on various other websites, which are interactive in nature, and, in fact, the defendants' own website is interactive in nature and offers its services to users all across the country. He further submits that, in fact, 30% seats of Management Quota are also open to students, including those from outside the State of Telangana. This itself shows that the defendants are also targeting the students from outside the State of Telangana.

Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44

7. He lastly submits that the programme offered by the defendants, being AICTE-approved, would also vest jurisdiction on this Court. In support, he places reliance on the judgment of a Coordinate Bench in Ritnand Balved Education Foundation v. Ranchhod M. Shah and Ors., MANU/DE/3792/2018.

Submissions (in rejoinder) made on behalf of the defendant

8. In rejoinder, the learned counsel for the defendant nos. 1 to 7 submits that the online course was offered by the said defendants only during the period of nation-wide as also state-wide lockdowns imposed due to the COVID-19 pandemic, and to students admitted in its institution solely in the State of Telangana. As far as webinars are concerned, she reiterates that these are intended or targeted towards the students in the State of Telangana and the links were specifically given to the participants and it was not an open link.

9. As far as the third-party websites are concerned, the learned counsel for the defendant nos. 1 to 7 submits that these websites are not connected with the said defendants and are working independently. For its own website, she submits that the same, in fact, again requires the students to approach the institutions of the defendants in the State of Telangana and therefore, cannot even be stated to be interactive for purposes of invoking the jurisdiction of this Court.

Analysis and Findings

10. I have considered the submissions made by the learned counsels for the parties.

Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44

11. It is not denied that though for brief period, that is, during state-wide and nation-wide lockdowns imposed due to the COVID-19 pandemic, the defendant nos. 1 to 7 was imparting its classes through online mode. This may have been due to the force of circumstances at that stage, however, clearly shows that its services would have been provided to the students who were situated outside the State of Telangana.

12. In any event, the defendant nos. 1 to 7 was providing webinars, which, though the learned counsel for the defendant nos. 1 to 7 submits was confined to students to whom links were given by the defendants, but from their own advertisement, do not appear to be confined only to students who are in the State of Telangana. The advertisements have been reproduced in the plaint and are as under:-

Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44 Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44

13. The plaintiff has also asserted that the website of the defendant nos. 1 to 7 is advertising acceptance of application for enrolment of students online and gives the mobile numbers for further inquires. It, in fact, makes an open notification to any interested third party/entity/individual/student to apply for their educational courses offered under the impugned marks without any restriction to city/state, which would include Delhi.

14. It is a settled law that at this stage, it is only the averments made in the plaint that are to be seen. The plaintiff has, in my view, made sufficient averments in the plaint to invoke the jurisdiction of this Court.

15. As far as the judgment of this Court in Banyan Tree Holding (P) Limited (supra) is concerned, this Court has held as under:-

Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44

"42. This Court holds that jurisdiction of the forum court does not get attracted merely on the basis of interactivity of the website which is accessible in the forum state. The degree of the interactivity apart, the nature of the activity permissible and whether it results in a commercial transaction has to be examined. For the 'effects' test to apply, the Plaintiff must necessarily plead and show prima facie that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state. For the purposes of a passing off or an infringement action (where the plaintiff is not located within the jurisdiction of the court), the injurious effect on the Plaintiff's business, goodwill or reputation within the forum state as a result of the Defendant's website being accessed in the forum state would have to be shown. Naturally therefore, this would require the presence of the Plaintiff in the forum state and not merely the possibility of such presence in the future. Secondly, to show that an injurious effect has been felt by the Plaintiff it would have to be shown that viewers in the forum state were specifically targeted. Therefore the 'effects' test would have to be applied in conjunction with the "sliding scale" test to determine if the forum court has jurisdiction to try a suit concerning internet based disputes.

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45. This court holds that in order to prima facie establish that the Defendant purposefully availed of the jurisdiction of this court, the Plaintiff would have to show that the Defendant engaged in some commercial activity in the forum State by targeting its website specifically at customers within that State. This is consistent with the law laid down in Cybersell and reiterated later in Toys R Us. It is also consistent with the application of the 'tighter' version of the 'effects' test which is 'targeting'. In any action for passing off or infringement, it would have to be shown that the Defendant by using its mark intended to pass off its goods as that of the Plaintiff's. A mere hosting of a website which can be accessible from anyone from within the jurisdiction of the court is not sufficient for this purpose. Also a mere posting of an Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44 advertisement by the Defendant depicting its mark on a passive website which does not enable the Defendant to enter into any commercial transaction with the viewer in the forum state cannot satisfy the requirement of giving rise to a cause of action in the forum state. Even an interactive website, which is not shown to be specifically targeted at viewers in the forum state for commercial transactions, will not result in the court of the forum state having jurisdiction. In sum, for the purposes of Section 20(c) CPC, in order to show that some part of the cause of action has arisen in the forum state by the use of the internet by the Defendant, the Plaintiff will have to show prima facie that the said website, whether euphemistically termed as "passive plus" or "interactive", was specifically targeted at viewers in the forum state for commercial transactions. The Plaintiff would have to plead this and produce material to prima facie show that some commercial transaction using the website was entered into by the Defendant with a user of its website within the forum state and that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state. Question no. (ii) is answered accordingly."

16. At the present stage, it cannot be said that with the averments made in the plaint, the plaintiff has not been able to meet the test as laid down by the Division Bench of this Court in the above judgment.

17. Accordingly, no merit is found in the present application. The same is dismissed. This shall, however, not preclude the defendants from raising the issue of lack of territorial jurisdiction during the trial of the suit. CS(COMM) 270/2022 & I.A. 6494/2022, 8702/2022, 12386/2022, 12387/2022 & 13280/2022

18. The written statement on behalf of the defendant nos. 1 to 7 and replication thereto are on record.

Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44

19. The order dated 08.08.2022 of the learned Joint Registrar (Judicial) states that the written statement has been filed, however, still proceeds to close the right of the defendant nos. 1 to 7 to file the written statement.

20. The learned senior counsel for the plaintiff does not oppose the submission of the learned counsel for the defendant nos. 1 to 7 that this observation of the learned Joint Registrar (Judicial) is contrary to the record.

21. The order dated 08.08.2022 of the learned Joint Registrar (Judicial) is accordingly modified and the written statement and the replication are officially taken on record.

22. List for consideration of the pending applications and further proceedings on 3rd November, 2022.

NAVIN CHAWLA, J AUGUST 26, 2022/rv/AB Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44

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Delhi High Court - Orders