Delhi High Court
B.M.K Marketing & Ors vs Krbl Limited on 18 August, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th August, 2017
+ CM(M) No.875/2017 and CM No.29231/2017 (for stay)
B.M.K MARKETING & ORS ..... Petitioners
Through: Mr. Jayant Mehta with Mr. Jaspreet
Singh and Ms. Disha Malhotra, Advs.
Versus
KRBL LIMITED ..... Respondent
Through: Mr. S.K. Bansal, Mr. Vinay Kumar
Shukla, Mr. Ajay Amitabh Suman and
Mr. Kapil Kumar Giri, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
Caveat No.729/2017.
1. The counsel for the Caveator has appeared.
2. The Caveat stands discharged.
CM No.29232/2017 (for exemption).
3. Allowed, subject to just exceptions.
4. The application stands disposed of.
CM(M) No.875/2017 and CM No.29231/2017 (for stay).
5. This petition under Article 227 of the Constitution of India impugns
the order (dated 18th May, 2017 in TM No.51/16 of the Court of Additional
District Judge-03, Patiala House Courts, New Delhi District) of dismissal of
the application under Order VII Rule 10 of the Code of Civil Procedure,
1908 (CPC) filed by the petitioners / defendants for return of the plaint in the
suit filed by the respondent / plaintiff for injunction and ancillary reliefs
against passing off.
CM (M) No.875/2017 Page 1 of 9
6. I have enquired from the counsel for the petitioners / defendants
whether not the order of dismissal of an application under Order VII Rule 10
of the CPC would be revisable under Section 115 of the CPC.
7. The counsel for the petitioners / defendants states that since the
jurisdiction of this Court under Section 115 of the CPC and under Article
227 of the Constitution of India is alike, the said question need not come in
the way of consideration of this petition. Reference is made to Surya Dev
Rai Vs. Ram Chander Rai (2003) 6 SCC 675.
8. Supreme Court in para 26 of Surya Dev Rai supra itself has said that
the High Court would be justified in refusing to exercise jurisdiction under
Article 227 of the Constitution of India with respect to orders remedy
whereagainst is provided in the CPC or under some other Statute. To the
same effect are i) Sadhana Lodh Vs. National Insurance Co. Ltd. (2003) 3
SCC 524; ii) State Bank of India Vs. Allied Chemical Laboratories (2006)
9 SCC 252; iii) Bijay Kumar Duggal Vs. Bidya Dhar Dutta (2006) 3 SCC
242; iv) Ajay Bansal Vs. Anup Mehta (2007) 2 SCC 275; and, v) Seth
Rattan Chand Vs. Pandit Durga Prasad (2003) 5 SCC 399.
9. It is thus felt that this Court should not continue to entertain petitions
which should have been filed under Section 115 of the CPC but have
wrongly been filed under Article 227 of the Constitution of India and which
is leading to the bar not following the law as it should.
10. Though I have been rejecting such petitions but on the assurance of
the counsel for the petitioners / defendants that he will take care in future, the
counsel for the petitioners / defendants has been heard on merits.
11. The respondent / plaintiff, in paras 41 and 43 of the plaint, has pleaded
as under with respect to the territorial jurisdiction of the Court at Delhi:-
CM (M) No.875/2017 Page 2 of 9
"41. The Plaintiff also learnt that the Defendants are
carrying on its impugned activities under the impugned
Trade Mark / Label in a clandestine and surreptitious
manner and that too without issuing formal sale bills.
The Defendants are not only making the retain sales but
is also supplying the impugned goods bearing the
impugned Trade Mark / Label to various other dealers /
shopkeepers / retailers including in New Delhi area, who
are making the clandestine and surreptitious sales
thereof to the unscrupulous traders and manufacturers of
the counterfeit products of the Plaintiff under the said
Trade Mark / Label in the markets of New Delhi area viz.
Connaught Place, Gole Market, Bengali Market,
Chankyapuri, Mandir Marg etc. In any case the alleged
user of the Defendants are illegal and void-ab-initio.
43. That this Hon'ble Court has the territorial
jurisdiction to try and adjudicate the present suit. The
defendants are making clandestine and surreptitious
sales, offering for sale, and are also supplying,
purveying, displaying, and soliciting (also through its
website www.saffronwala.com), have intention to sell
their impugned goods and business under the impugned
trade mark / label in New Delhi area viz. Connaught
Place, Gole Market, Vasant Kunj, Bengali Market,
Naraina, Mandir Magar etc. The defendants are
committing the impugned acts of infringement and
passing-off in the markets of New Delhi area viz.
Connaught Place, Gole Market, Vasant Kunj, Bengali
Market, Naraina, Mandir Marg etc. within the
jurisdiction of this Hon'ble Court by selling, soliciting,
trade, distribution, and marketing networks in relation to
the impugned goods under the impugned trademark /
label. The plaintiff's above said proprietary rights are
CM (M) No.875/2017 Page 3 of 9
being prejudicially affected or likely to be so affected in
New Delhi due to the defendants' impugned activities.
The defendants are selling / trading / soliciting, have all
the intention to use the impugned trademark / label in the
markets of New Delhi viz. Connaught Place, Gole
Market, Vasant Kunj, Bengali Market, Naraina, Mandir
Marg etc. The impugned products of the defendants are
available in New Delhi area. The defendants are
committing act of infringement of plaintiff's trademark
and copyright and passing-off within the territorial
jurisdiction of this Hon'ble Court. The defendants are
soliciting and intend to sell their counterfeit goods in
New Delhi area and are committing the act of
infringement and passing off in New Delhi by making the
clandestine and surreptitious sales and distribution of
the impugned goods under the impugned Trade Mark /
Label. The carrying of business by the defendants in New
Delhi (vide abovesaid acts and / or violations) as well as
whole or part of cause of action for filing the suit has
arisen within the territorial jurisdiction of this Hon'ble
Court within the meaning of Section 20 of Code of Civil
Procedure, 1908. Besides this, a part of cause of action
arose in favour of the plaintiff against the defendants
within the territorial jurisdiction of this Hon'ble Court.
The plaintiff is having registered office in Delhi and is
selling the goods under the said trademark / label INDIA
GATE with device of INDIA GATE in New Delhi market
viz. Gole Marekt, Khan Market, Bengali Market,
Naraina etc. through its authorised distributors National
Pure Products and R.S. Distributors. Further, the
plaintiff is maintaining its website Portal ecommerce
website www.krblrice.in which is interactive in nature
and having accessibility within the Jurisdiction of the
CM (M) No.875/2017 Page 4 of 9
Hon'ble Court. The plaintiff has tremendous goodwill
and reputation in its said trade mark / label INDIA
GATE within device of INDIA GATE within the
jurisdiction of this Hon'ble Court on account of
voluminous sales, Advertisement and distribution. This
Hon'ble Court as such also has a jurisdiction to try and
adjudicate the present suit by virtue of Section 62(2) of
the Copyright Act."
12. The first contention of the counsel for the petitioners / defendants is
that the impugned order suffers from perversity inasmuch as the learned
Additional District Judge in para 15 of the impugned order, referring to para
32 of the plaint, has held that the same contains a plea of the petitioners /
defendants selling goods in New Delhi area. It is contended that though para
32 is re-produced also in para 14 of the impugned order, but a reading
thereof would show that there is not a whisper therein about the petitioners /
defendants selling in New Delhi area.
13. The said mistake of the learned Additional District Judge would not
lead to setting aside of the order, if otherwise the same is found to be correct.
14. It has thus been enquired from the counsel for the petitioners /
defendants as to how, in the light of averments in paras 41 and 43 of the
plaint, it can be said that the plaint should be returned at the threshold only.
15. The counsel for the petitioners / defendants has argued that the plaint
has to be read meaningfully and the clever drafting by the Advocate for the
respondent / plaintiff should not be permitted to create territorial jurisdiction
where none exists. It is contended that the petitioners / defendants in the
present case are at Srinagar and Telangana and no cause of action has
accrued to the respondent / plaintiff against the petitioners / defendants
CM (M) No.875/2017 Page 5 of 9
within the territorial jurisdiction of this Court. It is argued that though the
plaint is verified on the basis of documents but the respondent / plaintiff has
not placed a single document before the Court to support the pleas contains
in paras 41 and 43 supra. On enquiry, whether any of the impugned goods of
the petitioners / defendants sell in Delhi, the counsel for the petitioners /
defendants states that the petitioners / defendants do not sell their goods in
Delhi. Reliance is placed on Begum Sabiha Sultan Vs. Nawab Mohd.
Mansur Ali Khan (2007) 4 SCC 343.
16. Begum Sabiha Sultan supra was a case under Section 16 of the CPC.
The reliefs claimed in that suit were of (i) declaration that oral Will allegedly
made at Delhi was never made; (ii) declaration that the Sale Deed executed
was null and void; (iii) of partition of immovable property situated outside
Delhi; and, (iv) of rendition of accounts, injunction etc. the Supreme Court
affirmed the judgment of the Single Judge and the Division Bench of this
Court returning the plaint, observing that though at the stage of consideration
of the application under Order VII Rule 10 of the CPC it is only the plaint
which is to be looked into but the plaint has to be read in a meaningful
manner to find out the real intention behind the suit. It was further held that
reading of the plaint in that case left no manner of doubt that the suit was
essentially for the relief of partition and declaration with respect to properties
situated outside the territorial jurisdiction of the Courts at Delhi and there
was really no need for the relief sought of declaration of the oral Will
claimed to have been made at Delhi.
17. I am afraid, the aforesaid judgment cannot have application to the
present situation. There is a difference between 'meaningful reading of the
plaint, to fathom what is the real claim therein' and 'determining the truth or
CM (M) No.875/2017 Page 6 of 9
falsity of the averments in the plaint'. What the Supreme Court in Begum
Sabiha Sultan did was to see the real relief claimed in the suit
and for grant of which the Court at Delhi had no jurisdiction and held that
the relief claimed to create jurisdiction of this Court was not material.
However the petitioners / defendants in the present case want this Court to
do, at the stage of Order VII Rule 10 CPC, without any evidence, is to hold
that the averments in paras 41 and 43 of the plaint are not to be believed for
the reason of no document in support thereof having been filed. Rather, I
have enquired from the counsel for the petitioners / defendants that though
the respondent / plaintiff may not have filed any invoices / bills of sale of
goods by the petitioners / defendants at Delhi, whether they have filed the
report of any investigator. The answer is in the negative.
18. The counsel for the respondent / plaintiff has per contra relied upon
Allied Blenders & Distillers Pvt. Ltd. Vs. Prag Distillery Pvt. Ltd. 2017 III
AD (Delhi) 633 (DB) where it has been held in the context of an application
under Order VII Rule 10 of the CPC in a suit inter alia for passing off, i.e. of
the same nature as the suit subject matter of this petition, that once the
allegations were found in the plaint, which if proved vested this Court with
territorial jurisdiction, the Court could not go into the correctness or falsity
thereof. The counsel for the respondent / plaintiff contends that in fact the
suit subject matter of Allied Blenders & Distillers Pvt. Ltd. was a quia timet
action.
19. The counsel for the respondent / plaintiff in this regard has also
referred to para 11 of RSPL Limited Vs. Mukesh Sharma 232 (2016) DLT
161 (DB).
CM (M) No.875/2017 Page 7 of 9
20. Once the distinction between 'meaningful reading of the plaint' and
'determining the truth and falsity of the averments in the plaint' is realised,
the argument of the petitioners / defendants falls.
21. The counsel for the petitioners / defendants states that his argument is
not to the said effect but to the effect that 'a prima facie view' of the matter
should be taken, based on the plaint and the documents.
22. I am afraid I am unable to agree with the said proposition also.
Applications under Order VII Rule 10 applications are not to be decided
taking a prima facie view qua territorial jurisdiction. In fact, the Courts have
with respect to framing of preliminary issue qua the aspect of territorial
jurisdiction also held that the issue, when a mixed question of law and fact,
cannot be ordered to be treated as a preliminary issue. Reference in this
regard may be made to Major S.S. Khanna Vs. Brig. F.J. Dillon AIR 1964
SCC 497 and Ramesh B. Desai Vs. Bipin Vadilal Mehta (2006) 5 SCC 638.
Once that is so, the factual disputes which arise as to territorial jurisdiction
i.e. whether the averments in paras 41 and 43 are true or not, can be decided
only after trial and hence the application under Order VII Rule 10 of the
CPC has been rightly dismissed by the learned Additional District Judge.
23. I must however hasten to add that recently in Kuldeep Singh Pathania
Vs. Bikram Singh Jaryal (2017) 5 SCC 345 Supreme Court has dealt with
the relative scope of Order VII Rule 11 vis-a-vis Order XIV Rule 2 of the
CPC. It was held i) the whole purpose of trial on preliminary issue is to save
time and money; ii) though it is not a mini trial, the Court can and has to
look into the entire pleadings and material available on record, to the extent
not in dispute; iii) but that is not the situation as far as enquiry under Order
VII Rule 11 of the CPC concerned - that is only on institutional defects - the
CM (M) No.875/2017 Page 8 of 9
Court can only see whether the plaint, or rather the pleadings of plaintiff,
constitute cause of action - pleadings in the sense, where written statement is
filed and if there is a replication thereto, the same can also, in a given case,
be looked into to see whether there is any admission on the part of plaintiff;
iv) in other words, under Order VII Rule 11, the Court has to take a decision
looking at the pleadings of the plaintiff only and not on the rebuttal made by
the defendant or any other material produced by the defendant.
24. There is no merit in the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
AUGUST 18, 2017 'pp'..
CM (M) No.875/2017 Page 9 of 9