Delhi District Court
Haldiram India Private Limited vs S. K. Foods & Beverages on 23 January, 2023
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT
JUDGE(COMM.)-03 SHAHDARA, KKD, DELHI
CS Comm. No.457/2021
Haldiram India Private Limited
B-1/F-12, Mohan Co-operative
Industrial Estate, Main Mathura
Road, New Delhi-110044. ..........Plaintiff
Vs.
S. K. Foods & Beverages
Chhata Chowk, Kalambagh Road,
Muzzafarpur, Bihar-842002. ..........Defendant
23.01.2023
Order on Preliminary Issue on Territorial Jurisdiction
1. Vide this Order I shall dispose of preliminary issue framed by this Court
on the ground of Territorial Jurisdiction. This suit is filed by plaintiff
company for seeking reliefs of Permanent and Mandatory Injunction,
Infringement of Trademark, Copyright and Passing Off apart from
Rendition of Account and Damages of their Registered Trademark
'Haldiram' and its logo.
2. I have heard arguments of Sh. Sanjeev Singh, Ld. Counsel for the
plaintiff and Sh. Sanjay Kumar, Ld. Counsel for defendant and have
perused the case file carefully.
Case of the Plaintiff
3. The brief case of the plaintiff is that it is a Company duly registered with
ROC and is engaged in the business of processing, buying, selling,
distributing sweets, namkeen, dry fruits and other eatables in the name of
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 1
their trademark 'Haldiram' with 'HR Haldiram logo'. It is their case that
they adopted it in the year 1941 and had set up a shop in Delhi in 1982.
Their merchandise are available in 80 countries in Europe, Asia and other
continents. In the year 2016 they had a turnover of Rs.4,000 Crore. Their
trademark and logo are registered with Registrar of Trademark since 1972
onwards under various classes and also with trademark authorities of
other countries. Their goods are available in their several inhouse
websites including www.haldiram.com.
4. It is pleaded by the plaintiff in the plaint that the defendant is also
engaged in the trade of Indian sweets, namkeens, cookies, confectionary
items and other eatables and are offering these services in their restaurant
and hotel at Muzzafarpur city in Bihar. It is case of the plaintiff that
defendants have adopted a trademark logo which is deceptively similar to
the logo of the plaintiff. As per them when plaintiff came to know
adoption of this logo by the defendant in September 2021 and plaintiff
launched an enquiry into this matter during which it came to know that
the said logo was adopted by the defendant lately. It is claimed that the
adopted logo is structurally, phonetically and factually similar to the logo
of the plaintiff. It is pleaded that defendant adopted and started using the
impugned logo despite having full knowledge of plaintiff's rights over the
logo HR Haldiram Bhujiawala. It is pleaded that this deceitful adoption
has the potential of deceiving the consumers that the goods and services
provided by the defendant are emanating from the plaintiff. It is pleaded
that the act of defendant constitutes infringement of trademark and
copyright, passing off, dilution of plaintiff's trademark and copyright and
unfair competition causing financial damage to the plaintiff.
5. Before looking into the specific pleadings available in the plaint qua the
cause of action and territorial jurisdiction, it would be handy to have a
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 2
glance at the binding statutory provisions as contained in the CPC as also
Delhi High Court Rules and Procedures as applicable to Civil Courts.
The first reference of "Plaint" appears in the Code of Civil Procedure,
1908 in Section 26 of the Code which provides that every suit shall be
instituted by presentation of a plaint as also that facts contained in every
plaint shall be proved by way of affidavit. Order 6 of the Code is titled
'Pleadings Generally' and it is provided that every plaint shall contain
concise form of material facts on which the party pleadings relies for his
claim, the same is reproduced hereunder for ready reference:
Section 26 CPC: Institution of Suits
"(1) Every suit shall be instituted by the presentation of a plaint or in such
other manner as may be prescribed.
(2) In Every plaint, facts shall be proved by affidavit."
Order 6 Rule 2 CPC: Pleading to state material facts and not
evidence.--
(1) Every pleading shall contain, and contain only, a statement in a concise
form of the material facts on which the party pleading relies for his claim or
defence, as the case may be, but not the evidence by which they are to be
proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, num-
bered consecutively, each allegation being, so far as is convenient, contained in
a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as
well as in words.
6. In case title Mayar (HK) Limited Vs. Owners and Parties, Vessel MV
Fortune Express, 2006 Latest Caselaw 40 SC. While discussing the
term "material facts" Hon'ble Supreme Court observed:
"The expression 'material facts' has not been defined anywhere, but from the
wording of Order VI, rule 2 of the material facts would be, upon which a party
relies for his claim or defence. The material facts are facts upon which the
plaintiff's cause of action or defendants' defence depends and the facts which
must be proved in order to establish the plaintiff's right to the relief claimed in
the plaint or the defendant's defence in the written statement. Which particular fact
is a material fact and is required to be pleaded by a party, would depend on the
facts and circumstances of each case.
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 3
(Emphasis Supplied)
7. In another case title Virender Kashinath Ravat V. Vinayak N. Joshi,
1998 Latest Caselaw 528 SC while highlighting the object sought to be
achieved by the Parliament by incorporating Order 6 Rule 2 CPC it was
observed:
The object of Rule 2 (1) is two-fold. First is to afford the other side intimation regarding
the particular facts of the case so that they may be met by the other side. Second is to
enable the court to determine what is really the issue between the parties. The words in
the sub-rule "a statement in a concise form" are definitely suggestive that brevity
should not be at the cost of setting out necessary facts, but it does not mean niggling in
the pleadings.
(Emphasis Supplied)
8. In another case Mahendra Pal Vs. Ram Dass Malanger, 1999 Latest
Caselaw 433 SC while discussing the term "material facts and
particulars" it was observed:
"Facts which are essential to disclose a complete cause of action are material facts and
are essentially required to be pleaded. On the other hand "particulars" are details of the
case set up by the party and are such pleas which are necessary to amplify, refine or
explain material facts. The function of particulars, is thus, to present a full picture of
the cause of action to make the opposite party understand the case that has been set up
against him and which he is required to mee. The distinction between "material facts"
and "material particulars" is indeed in the pleadings. In the case of a petition suffering
from a deficiency of material particulars, the Court has the discretion to allow the
petitioner to supply the required particulars even after the expiry of limitation."
9. Plain reading of the above statutory provisions in conjunction with
judgments of the Hon'ble Supreme Court make it amply clear that in
every plaint the plaintiff is duty-bound to plead material facts in such
form and detail which gives a full picture qua the cause of action and
jurisdiction so that the opposite party and the Court can understand the
same in the right earnest.
10.Order 7 of the CPC title "Plaint". In Rule 1 provides as to what shall
form a plaint. The same is reproduced hereunder for ready reference:
Plaint:
Particulars to be contained in plaint: The plaint shall contain the following
particulars:-
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 4
(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be
ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a
statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(Emphasis Supplied)
11.The binding statutory provisions on pleadings mandates that the plaintiff
shall, in his plaint plead not only details of the facts which constitutes the
cause of action, when the cause of action arose and such facts which are
necessary to show that the Court where the suit is filed has jurisdiction to
try the same.
12.The above statutory provisions are complimented by the binding Delhi
High Court Rules and Procedures wherein Volume 1 Part C title
"Instructions to Civil Courts in Delhi - Examination of the plaint" a
duty is casted on the Court is as follows:-
Delhi High Court Rules and Procedures
"Volume 1 : Instructions to Civil Courts in Delhi
Part C
Examination of the Plaint
1. Examination: On the presentation or receipt of a plaint, the Court should
examine it with special reference to the following points viz.
i. Whether the plaint contains the particulars specified in Order VII,
Rule 1 and conforms to the other rules of pleadings in Orders VI and
VII and rules made by the High Court thereunder;
ii. whether there is prima facie, any non-joinder or mis-joinder of parties,
or mis-joinder of causes of action;
iii. whether any of the parties to the suit are minors and if so whether they
are properly represented;
iv. whether the plaint is duly signed and verified;
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 5
v. whether the suit is within the jurisdiction of the Court or must be returned for
presentation to proper Court (Order VII, Rule 10);
vi. whether the plaint is liable to be rejected for any of the reasons given in
Order VII, Rule 11;
vii. whether the documents attached to the plaint (if any) are accompanied by
lists in the prescribed form and are in order;
viii.whether the plaintiff has filed a proceeding containing his address for service
during the litigation as required by Rule 19 of Order VII as framed by the
High Court;
ix. in money suits, whether the plaintiff has stated the precise amount he claims;
x. whether the plaintiff has stated in his plaint regarding the documents on
which he relates his claim and are not in his possession and a statement in
whose possession or power they are;
xi. whether the plaintff has filed the address of the party in the prescribed form.
(Emphasis Supplied)
13. In the same rule duty is casted upon the litigants qua the pleadings in
following words:
2. Pleadings- The provisions of the Code, with regard to the pleadings (which term
includes the plaint and written statements of parties) should be carefully studied. The
principal rules of pleadings may be briefly stated as follows:
(a) The whole case must be stated in the pleadings, that is to say all material facts
must be stated (Order VI, Rule 2).
(b) Only material facts are to be stated. The evidence by which they are to be proved is
not to be stated (Order VI, Rules 2, 10, 11 and 12).
(c) The facts are to be stated concisely.
(d) It is not necessary to allege the performance of any condition precedent; and
averment of performance is implied in every pleading but a non-performance of
condition precedent, if relied on, must be distinctly stated (Order VI Rule 6).
(e) It is not necessary to set out the whole or any part of a document unless the precise
words thereof are necessary. It is sufficient to state the effect of the document as briefly
as possible (Order VI, Rule 9)
(f) It is not necessary to allege a matter of fact which the law presumes, or as to which
the burden of proof lies on the other side (Order VI, Rule 13).
(g) When misrepresentation fraud, undue influence etc., are pleaded, necessary
particulars must always be given (Order VI, Rule 4).
(h) When a suit is prima facie time-barred, the ground on which exemption is claimed
must be stated (Order VII, Rule 6).
If the plaint is prolix (lengthy) or omits to give the ncessary particulars or to specify
the relief claimed precisely or is defective in any other respect, it should be returned to
the party or his counsel for such amendment as may be necessary in the actual
presence of the presiding officer after he has signed the endorsement. The Court has
wide powers in this respect (see Order VI, Rules 16 and 17). Where amendment is
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 6
directed, an order should be recorded by the Judge indicating the particulars about
the necessary amendment and fixing a date for filing the amended plaint.
(Emphasis Supplied)
14.The same Rule also provides findings qua jurisdiction which is
reproduced as under:
"5. Jurisdiction: The jurisdiction of a Court depends upon the nature and value of the
suit. If a suit is not within the jurisdiction of the Court, the plaint must be returned in
the presence of the Presiding Officer for presentation to proper Court. In such cases
the Presiding Officer must record on the plaint his reasons for returning it along with
the other particulars mentioned in sub-rule (2) of Rule 10 of Order VII.
15.It is in the backdrop of above clean binding Statutory Laws, Rules and
Judgments of Hon'ble Supreme Court on stressing on clarity in pleadings
on the part of the cause of action and the jurisdiction all that is pleaded by
the plaintiff in this suit is reproduced hereunder:
Territorial Jurisdiction:
32."That the defendant is also engaged in the same nature of trade and business of
manufacturing, marketing and selling of variety of Nammeen, Snack Foods, Puffs,
Chips, Ready to Eat Snacks, Confectionary, Indian Sweets, Biscuit, Cookies, Coffee,
Tea, Flour and preparations made from Cereals, Bread, Pastry and Confectionary etc.,
and are offering restaurant and hotel services (hereinafter referred to as the 'impuged
goods and services') from the address mentioned in the Memo of Parties. The defendant
has adopted identical and deceptively similar trade
"Picture logo of Defendant" "Picture logo of Plaintiff"
mark/trade name/logo/label (hereinafter referred to as the 'impugned trade mark/trade
name/logo') in relation to abovementioned impugned goods and services."...........
53."That the cause of action has substantially arisen in the month of September,
2021 when the plaintiff in the course of trade and business came across the said
impugned goods and services of the defendant. The defendant also deals in the
packed savories' and sweets which causes every likelihood that the impugned
goods/services are entering and distributed in the national territory. The cause of
action further arose when the plaintiff made a test purchase of the infringing
goods/services of the defendant from the outlet/shop and invoices issued against the
same. The cause of action is continuous one and will continue to accure so long as
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 7
the Defendant is not restrained from using the impugned trade mark/trade name
Haldiram Bhujiawala alongwith H Logo/HRB Logo. There has been no delay,
acquiescence, waiver, estoppels or admission by the Plaintiff to the defendants
impugned adoption and user.
54. That this Hon'ble Court has the jurisdiction to try and adjudicate the present
suit as the cause of action has arisen within the territorial jurisdiction of this
Hon'ble Court owing to the following:
(i) This Hon'ble Court has jurisdiction to try and adjudicate the present suit
within the meaning of Section 134 (2) of the Trade marks Act, 1999 and Section
62 (2) of the Copyright Act for the following reasons:
(a)The plaintiff is the registered proprietor of various trademarks and the
HR Haldiram's logo and representation of Haldiram Bhujiawala HRB
under the Trade Marks Act, 1999 and various packaging under the
Copyright Act, 1957.
(b) The Plaintiff carries on business in Shahdara markets Delhi through its
"dealer/distributors" and "Restaurant Services" which are within
territorial limits of this Hon'ble Court. The Plaintiff also submits that they
carry on business and works for profit and gain within the territorial limits
of this Hon'ble Court by widely supplying and selling its products and
offering restaurant services in Shahdara, Delhi. The plaintiff also has
various dealers and distributors which are engaged in marketing and
supplying, selling multiple products of the plaintiff bearing its well-known
marks/trade name "Haldiram"/HR Haldiram's Logo and HRB Logo
including the trademark/tradename/label/packaging/trade dress/logo
"Haldiram" within the territorial jurisdiction of this Hon'ble Court;
(c) The plaintiffs carry on business and work for gain within the territorial
limits of this Hon'ble Court since the products of the plaintiff including
those bearing trade mark/trade name "Haldiram" and HR Haldiram's
Logo/HRB Logo are available for purchase online on website
http://www.haldiram.com, www.amazon.in, www.bigbasket.com,
www.paytmmall.com, www.flipcart.com, www.grofers.com which is
accessible to consumers in jurisdiction of this Hon'ble Court and on which
commercial transactions are being concluded within the territorial
jurisdiction of this Hon'ble Court for the purchase of the products of the
plaintiff;
Accordingly, actual acts of infringement and/or passing off are taking place within
the jurisdiction of this Hon'ble Court. The plaintiff' proprietory rights in its
trademark, trade name and copyright are being prejudicially affected due to the
Defendants' impugned activities within the jurisdiction of this Hon'ble Court. The
plaintff's goodwill and reputation in its well-known trade mark/trade name
"Haldiram" and HR Haldiram's Logo/HRB Logo is being tarnished by
Defendant's impugned activites which are carried out within the jurisdiction of
this Hon'ble Court. This Hon'ble court thus has the jurisdiction to try and
adjudicate the suit.
16.Upon filing of this suit, Ld. Predecessor of the Court awarded ex-parte Ad
interim Injunction to the plaintiff and LC was appointed under Order 26
Rule 9 CPC vide order dated 07.12.2021.
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 8
Defendant's Objection: Lack of Territorial Jurisdiction
17.Upon service of summons of the suit defendant contested the same by
filing a detailed WS objecting to the suit in hand for want of territorial
jurisdiction. In his pleadings and submissions made during the course of
arguments Ld. Counsel for defendant has raised following objections to
territorial jurisdiction:
a) The plaintiff even if read and believed in totality does not disclose accrual of
any cause of action within the jurisdiction of District Shahdara, Delhi.
b) That plaintiff is a private limited company having registered office in Mathura
Road, Delhi which is part of South Delhi.
c) That defendant is a standalone sweet shop being run at Chhata Chowk, Kalam
Bagh Road, Muzzafarpur City, Bihar-842002 and are doing business only in
one city.
d) That defendant has no branch or stockist or distributor or agent in Shahdara or
anywhere in Delhi even as per plaint.
e) That defendant has no online presence on the internet or any other social
media handle even as per plaint.
f) That no infringement of trademark or copyright has taken place in District
Shahdara, Delhi.
g) That no violation of passing off right has taken place in Shahdara, Delhi.
h) That no document or other evidence is pleaded or filed to show any accrual of
cause of action at Shahdara Delhi.
i) Even the report of Ld. LC dated 05.01.2022 appointed by Ld. Predecessor of
this Court foes not disclose accural of any cause of action in Shahdara, Delhi.
18.With these pleas, it is argued that preliminary issue framed on lack of
territorial jurisdiction be decided against the plaintiff and in favour of the
defendant.
19.Having discussed the law on pleadings in civil suits it would be necessary
to set out the relevant provisions of the Code of Civil Procedure, 1908,
the Trade Marks Act, 1999 and the Copyright Act, 1957 on the point of
Territorial Jurisdiction. They are reproduced hereunder:-
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 9
Section 20 of the Code of Civil Procedure, 1908:
"20. Other suits to be instituted where defendants reside or cause of action arises.--
Subject to the limitations aforesaid, every suit shall be instituted in a Court within the
local limits of whose jurisdiction--
a) the defendant, or each of the defendants where there are more than one, at the time of
the commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain; or
b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business,
or personally works for gain, provided that in such case either the leave of the Court
is given, or the defendants who do not reside, or carry on business, or personally
work for gain, as aforesaid, acquiesce in such institution; or
c) the cause of action, wholly or in part, arises.
Explanation.--A corporation shall be deemed to carry on business at its sole or
principal office in India or, in respect of any cause of action arising at any place
where it has also a subordinate office, at such place."
(Emphasis Supplied)
Section 134 of the Trade Marks Act, 1999 (hereinafter referred to as
1999 Act):-
"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 subsection (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 there are more than one such
persons any of them, actually and voluntarily resides or carries on business or
personally works for gain.
Explanation.--For the purposes of sub-section (2), "person" includes the
registered proprietor and the registered user."
(Emphasis Supplied)
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 10
Section 62 of the Copyright Act, 1957 (hereinafter referred to as 1957
Act):-
"62. Jurisdiction of court over matters arising under this Chapter.--(1)
Every suit or other civil proceeding arising under this Chapter in respect of the
infringement of copyright in any work or the infringement of any other right
conferred by this Act shall be instituted in the district court having jurisdiction.
(2) For the purpose 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 other proceeding
or, where there are more than one such persons, any of them actually and
voluntarily resides or carries on business or personally works for gain."
(Emphasis Supplied)
Upon considering Section 134 of the 1999 Act and Section 62 of 1957
Act in their juxtaposition with Section 20 of CPC it is found that an
additional territorial jurisdictional location has been provided over and
above what was provided in Section 20 CPC by including a District Court
within whose limits the plaintiff actually and voluntarily resides or carries
on business or personally works for gain. The objective behind this
inclusion was to enable the plaintiff to institute a suit at a place where he
or they resided or carried on business. The objective was never to enable
them to drag the Defendants further and farther away from such a place to
a totally new territory which is neither envisaged in Section 20 CPC nor
in cumulative understanding of territorial jurisdiction upon combined
understanding of the three governing laws.
20.It is evident that the expression "notwithstanding anything contained in
the code of Civil Procedure" does not oust the applicability of the
provisions of Section 20 of the Code of Civil Procedure and it is clear that
additional remedy has been provided to the plaintiff so as to file a suit
where he is residing or carrying on business etc., as the case may be.
Section 20 of the Code of Civil Procedure enables a plaintiff to file a suit
where the defendant resides or where cause of action arose. Section 20(a)
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 11
and Section 20(b) usually provides the venue where the defendant or any
of them resides, carries on business or personally works for gain. Section
20 (c) of the Code of Civil Procedure enables a plaintiff to institute a suit
where the cause of action wholly or in part, arises.
21.Evidently, accural of cause of action is sine qua non for a suit to be filed.
'Cause of action' in legal parlance is a bundle of facts which is required
to be proved to grant relief to the Plaintiff. Cause of action not only refers
to the infringement but also the material facts on which a right is founded.
Section 20 of the Code of Civil Procedure recognises the Teritorial
Jurisdiction of the Court inter alia where the cause of action wholly or in
part arises. In each case an exercise has to be carried out to decide
whether cause of action actually arose wholly or in part at a particular
place as per Section 20 CPC and effect of its interplay with 1957 Act and
1999 Act.
22.In case title Indian Performing Rights Society Ltd. Vs. Sanjay Dalia
and Ors. 2015 Latest Caselaw 419 SC Hon'ble Supreme Court took
notice of the fact that in IPR cases Plaintiffs tend to sue the defendants at
a totally unrelated far away places that too place without any Territorial
Jurisdiction. While discussing the interplay between Section 20 of the
Code with Section 62 of 1957 Act and Section 134 of the 1999 Act at
length the Apex Court ruled that plaintiff can invoke Section 134 (2) of
the 1999 Act and Section 62 (2) of the 1957 Act to file a suit where
plaintiff has an office or Branch Office for carrying on business also
where cause of action is also claimed to have arisen. Meaning thereby
that a suit shall be instituted at a place (i) where cause of action has arisen
and (ii) where the plaintiffs had office or Branch office both combined
and not at a place where plaintiff has a branch office but no cause of
action took place. The Apex Court stressed that the plaintiffs cannot be
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 12
allowed to ignore the convenience provided by 1999 Act and 1957 Act
over and above Section 20 CPC where it is found that the suit is being
filed at a far-flunged space aimed only at harassing the defendants. The
relevant paragraphs of the Indian Performing Rights Society Ltd. Vs.
Sanjay Dalia (supra) are:
"16. On a due and anxious consideration of the provisions contained in section
20 of the CPC, section 62 of the Copyright Act and section 134 of the Trade
Marks Act, and the object with which the latter provisions have been enacted, it is
clear that if a cause of action has arisen wholly or in part, where the plaintiff is
residing or having its principal office/carries on business or personally works for
gain, the suit can be filed at such place/s. Plaintiff(s) can also institute a suit at a
place where he is residing, carrying on business or personally works for gain de
hors the fact that the cause of action has not arisen at a place where he/they are
residing or any one of them is residing, carries on business or personally works
for gain. However, this right to institute suit at such a place has to be read
subject to certain restrictions, such as in case plaintiff is residing or carrying on
business at a particular place/having its head office and at such place cause of
action has also arisen wholly or in part, plaintiff cannot ignore such a place
under the guise that he is carrying on business at other far flung places also.
The very intendment of the insertion of provision in the Copyright Act and
Trade Marks Act is the convenience of the plaintiff. The rule of convenience of
the parties has been given a statutory expression in section 20 of the CPC as
well. The interpretation of provisions has to be such which prevents the
mischief of causing inconvenience to parties.......
17. The intendment of the aforesaid provisions inserted in the Copyright Act and
the Trade Marks Act is to provide a forum to the plaintiff where he is residing,
carrying on business or personally works for gain. The object is to ensure that the
plaintiff is not deterred from instituting infringement proceedings "because the
court in which proceedings are to be instituted is at a considerable distance from
the place of their ordinary residence". The impediment created to the plaintiff by
section 20 C.P.C. of going to a place where it was not having ordinary residence
or principal place of business was sought to be removed by virtue of the aforesaid
provisions of the Copyright Act and the Trade Marks Act. Where the Corporation
is having ordinary residence/principal place of business and cause of action has
also arisen at that place, it has to institute a suit at the said place and not at other
places. The provisions of section 62 of the Copyright Act and section 134 of the
Trade Marks Act never intended to operate in the field where the plaintiff is
having its principal place of business at a particular place and the cause of
action has also arisen at that place so as to enable it to file a suit at a distant
place where its subordinate office is situated though at such place no cause of
action has arisen. Such interpretation would cause great harm and would be
juxtaposed to the very legislative intendment of the provisions so enacted.......
18.In our opinion, in a case where cause of action has arisen at a place where the
plaintiff is residing or where there are more than one such persons, any of them
actually or voluntarily resides or carries on business or personally works for
gain would oust the jurisdiction of other place where the cause of action has
not arisen though at such a place, by virtue of having subordinate office, the
plaintiff instituting a suit or other proceedings might be carrying on business or
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 13
personally works for gain.......
19.At the same time, the provisions of section 62 of the Copyright Act and section
134 of the Trade Marks Act have removed the embargo of suing at place of
accrual of cause of action wholly or in part, with regard to a place where the
plaintiff or any of them ordinarily resides, carries on business or personally
works for gain. We agree to the aforesaid extent the impediment imposed under
section 20 of the CPC to a plaintiff to institute a suit in a court where the
defendant resides or carries on business or where the cause of action wholly or in
part arises, has been removed. But the right is subject to the rider in case
plaintiff resides or has its principal place of business/carries on business or
personally works for gain at a place where cause of action has also arisen, suit
should be filed at that place not at other places where plaintiff is having branch
offices etc...... .
20.There is no doubt about it that the words used in section 62 of the Copyright
Act and section 134 of the Trade Marks Act, 'notwithstanding anything contained
in CPC or any other law for the time being in force', emphasise that the
requirement of section 20 of the CPC would not have to be complied with by the
plaintiff if he resides or carries on business in the local limits of the court where
he has filed the suit but, in our view, at the same time, as the provision providing
for an additional forum, cannot be interpreted in the manner that it has
authorised the plaintiff to institute a suit at a different place other than the place
where he is ordinarily residing or having principal office and incidentally where
the cause of action wholly or in part has also arisen. The impugned judgments, in
our considered view, do not take away the additional forum and fundamental
basis of conferring the right and advantage to the authors of the Copyright Act
and the Trade Marks Act provided under the aforesaid provisions......
21.The provisions of section 62(2) of the Copyright Act and section 134 of the
Trade Marks Act are pari materia. Section 134(2) of the Trade Marks Act is
applicable to clauses (a) and (b) of section 134(1) of the Trade Marks Act. Thus,
a procedure to institute suit with respect to section 134(1)(c) in respect of
"passing off" continues to be governed by section 20 of CPC.
22. If the interpretation suggested by the appellant is accepted, several mischiefs
may result, intention is that the plaintiff should not go to far flung places than that
of residence or where he carries on business or works for gain in order to deprive
defendant a remedy and harass him by dragging to distant place. It is settled
proposition of law that the interpretation of the provisions has to be such which
prevents mischief.
23. The provisions enabled the plaintiff or any of them to file a suit at the
aforesaid places. But if they were residing or carrying on business or personally
worked for gain already at such place, where cause of action has arisen,
wholly or in part, the said provisions have not provided additional remedy to
them to file a suit at a different place. The said provisions never intended to
operate in that field. The operation of the provisions was limited and their
objective was clearly to enable the plaintiff to file a suit at the place where he is
ordinarily residing or carrying on business etc., as enumerated above, not to go
away from such places. The Legislature has never intended that the plaintiff
should not institute the suit where he ordinarily resides or at its Head Office or
registered office or where he otherwise carries on business or personally works
for gain where the cause of action too has arisen and should drag the defendant
to a subordinate office or other place of business which is at a far distant place
under the guise of the fact that the plaintiff/corporation is carrying on business
CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages
page 14
through branch or otherwise at such other place also. If such an interpretation
is permitted, as rightly submitted on behalf of the respondents, the abuse of the
provision will take place. Corporations and big conglomerates etc. might be having several subordinate offices throughout the country. Interpretation otherwise would permit them to institute infringement proceedings at a far flung place and at unconnected place as compared to a place where plaintiff is carrying on their business, and at such place, cause of action too has arisen. In the instant cases, the principal place of business is, admittedly, in Mumbai and the cause of action has also arisen in Mumbai. Thus, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act cannot be interpreted in a manner so as to confer jurisdiction on the Delhi court in the aforesaid circumstances to entertain such suits. The Delhi court would have no territorial jurisdiction to entertain it.
24. The avoidance of counter mischief to the defendant is also necessary while giving the remedy to the plaintiff under the provisions in question. It was never visualised by the law makers that both the parties would be made to travel to a distant place in spite of the fact that the plaintiff has a remedy of suing at the place where the cause of action has arisen where he is having head office/carrying on business etc. The provisions of the Copyright Act and the Trade Marks Act provide for the authors/trade marks holders to sue at their ordinary residence or where they carry on their business. The said provisions of law never intended to be oppressive to the defendant. The Parliamentary Debate quoted above has to be understood in the manner that suit can be filed where the plaintiff ordinarily resides or carries on business or personally works for gain. Discussion was to provide remedy to plaintiff at convenient place; he is not to travel away. Debate was not to enable plaintiff to take defendant to farther place, leaving behind his place of residence/business etc. The right to remedy given is not unbriddled and is subject to the prevention of abuse of the aforesaid provisions, as discussed above. Parliament never intended that the subject provisions to be abused by the plaintiff by instituting suit in wholly unconnected jurisdiction. In the instant cases, as the principal place of business is at Mumbai the cause of action is also at Mumbai but still the place for suing has been chosen at Delhi. There may be a case where plaintiff is carrying on the business at Mumbai and cause of action has arisen in Mumbai. Plaintiff is having branch offices at Kanyakumari and also at Port Blair, if interpretation suggested by appellants is acceptable, mischief may be caused by such plaintiff to drag a defendant to Port Blair or Kanyakumari. The provisions cannot be interpreted in the said manner devoid of the object of the Act."
(emphasis supplied)
23.This Judgment of Hon'ble Supreme Court is a Benchmark for deciding disputes qua territorial jurisdiction in IPR cases in India and was rightly followed by Single Bench of Hon'ble Delhi High Court in case titled Ultra Home Construction Pvt. Ltd. Vs. Purushottam Chaubey and Ors., 2015 Latest Caselaw 5143 Del decided on 20.07.2015. In the cited case the plaintiff company had Registered Office at Karkardooma, Delhi. The defendant was allegedly infringing its registered trademark CS Comm. No.457/2021 Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages page 15 "AMARPALI" by adopting a strikingly similar tradename "AMBAPALI GREEN" at Deogarh, Jharkhand wherein plaintiff was also running a hotel in association with Ms. Clark under the name Amrapali Clark-Inn. In this case HMJ Valmiki Mehta, applied the ratio of Hon'ble Supreme Court of Indian Performing Rights Society Judgment (supra) returned the plaint for want of territorial jurisdication by concluding as under:
"7. I may note that it is conceded on behalf of the plaintiff that at the place where the defendants are infringing the trademark at the ogre, Jharkhand, plaintiff has a hotel, and if the plaintiff as a hotel can surely the plaintiff is carrying on business at that particular place and carrying on of the hotel business is very much a part of carrying on of the business of the plaintiff and therefore the race of the judgement in Indian Performing Rights Society Ltd's case (supra) clearly applies. The plaintiff is running the hotel with the Clark- Inn Hotel Group i.e. plaintiff company does have a share in the profits and losses in the hotel which is being run along with the Clark-Inn Hotel Group at the Deogarh, Jharkhand. Once that is so, there is a running business and plaintiff is therefore carrying on business at Deogarh, Jharkhand, and consequently the ratio of the judgement in the case of Indian performing rights Society Ltd (supra) applies and hence this court would not have territorial jurisdiction."
24.The above order of HMJ Valmiki Mehta was challenged by AMRAPALI GROUP in case title Ultra Home Construction Ltd. Vs. Purushottam Chaubey and Ors. 2016 Latest Caselaw 422 Del decided on 20.01.2016 before the Division Bench of HMJs B. D. Ahmed and Sanjeev Sachdeva. The Division Bench, painstakingly discussed the interplay between Section 20 of CPC, Section 134 (2) of 1999 Act and Section 62 (2) of 1957 Act, threadbare in the backdrop of Benchmark judgment of Indian Performing Rights Society (supra) of Hon'ble Supreme Court and ruled that even though the term "Carries on Business" is used in Section 162 (2) of 1999 Act and Section 62(2) of 1957 Act but no explanation is added in the above 2 statutes. The same phrase is used in Section 20 and by virtue of Indian Performing Rights Society (supra). The meaning assigned to "carry on business" qua a Corporation as CS Comm. No.457/2021 Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages page 16 contained in CPC shall be read for both Section 134 (2) of 1999 and Section 62 (2) of 1957 Act.
25.As referred to supra a Corporation can be said to "Carry on Business" at two places:
(a) Sole or principal office in India, or
(b) A place where (i) cause of action arose and a place where (ii) it also has a subordinate office.
26.While elaborating the above principal in para 13 Hon'ble Division Bench observed:
13.It is evident from the above observations that the interpretation given to the expression "carries on business" in the context of a defendant under section 20 of the Code has also been employed in the context of a plaintiff under the said sections 134(2) and 62(2). Thus, in addition to the places where suits could be filed under section 20 of the Code, the plaintiff can also institute a suit under the Trade Marks Act, 1999 and the Copyright Act, 1957, as the case may be, by taking advantage of the provisions of section 134(2) or section 62(2), respectively. Both the latter provisions are in pari materia. Under these provisions four situations can be contemplated in the context of the plaintiff being a corporation (which includes a company).
First of all, is the case where the plaintiff has a sole office. In such a case, even if the cause of action has arisen at a different place, the plaintiff can institute a suit at the place of the sole office.
Next is the case where the plaintiff has a principal office at one place and a subordinate or branch office at another place and the cause of action has arisen at the place of the principal office. In such a case, the plaintiff may sue at the place of the principal office but cannot sue at the place of the subordinate office. The third case is where the plaintiff has a principal office at one place and the cause of action has arisen at the place where its subordinate office is located. In this eventuality, the plaintiff would be deemed to carry on business at the place of his subordinate office and not at the place of the principal office. Thus, the plaintiff could sue at the place of the subordinate office and cannot sue (under the scheme of the provisions of section 134(2) and 62(2)) at the place of the principal office.
The fourth case is where the cause of action neither arises at the place of the principal office nor at the place of the subordinate office but at some other place. In this case, the plaintiff would be deemed to carry on business at the place of its principal office and not at the place of the subordinate office. And, consequently, it could institute a suit at the place of its principal office but not at the place of its subordinate office.
All these four cases are set out in the table below for greater clarity:
CS Comm. No.457/2021Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages page 17 S. No Place of Plaintiff's Place of Plaintiff's Place where cause of Place where Plaintiff Principal Office (Sole Subordinate/Branch action arose can additionally sue Office in S. No.1) Office under Section 134 (2) and Section 62 (2)
1. A -- C A
2. A B A A
3. A B B B
4. A B C A
27.The above judgment of Division Bench of Hon'ble High Court was further assailed by AMRAPALI GROUP in case title Ultra Homes Construction Private Ltd. Vs. Purushotam Kumar Chaubey and Ors. SLP no. 7551 of 2016 decided on 08.04.2016, but the above order was affirmed by the Apex Court.
28.Now, the above ratio on territorial jurisdiction as elaborately dealt with and eruditely explained by the Division Bench by virtue of the above table and the ratio concluded shall be applied on the facts of the case in hand.
29.Before embarking on evaluation of the facts available on record which are supposed to be taken into consideration for deciding the preliminary issue. Ld. Counsel for plaintiff has relied on RSPL Ltd. Vs. Mukesh Sharma and Ors. 2016 Latest Caselaw 5056 Del dated 03.08.2016 to bring home a point that while taking a decision on an application under Order 11 Rule 7 CPC or an objection qua Territorial Jurisdiction, it is only the Plaint and its annexures which have to be looked into by way of a demurrer. The relevant paras are reproduced as under:
10.It must be stated that in a settled proposition of law that the objection to territorial jurisdiction in an application under Order 7 Rule 10 CPC is by way of a demurrer. This means that the objection to territorial jurisdiction has to be construed after taking all the averments in the plaint to be correct. In Exphar SA and Another v. Eupharma Laboratories Limited and Another:
MANU/SC/0148/2004: (2004) 3 SCC 688 the Supreme Court observed that CS Comm. No.457/2021 Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages page 18 when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts, as pleaded by the initiator of the impugned procedure, are true. The Supreme Court further observed that the objectioin as to jurisdiction in order to succeed must demonstrate that granted those facts, the Court does not have jurisdiction as a matter of law. It is also a settled proposition of law that while considering a plaint from the standpoint of Order 7 Rule 10 CPC, it is only the plaint and the documents filed along with it, that need to be seen. The written statement is not to be looked into at all.
25.Once we hold that on the basis of the averments contained in the plaint, a part of cause of action has arisen in the territory over which this Court exercises jurisdiction, the condition prescribed in Section 20 (c) CPC stands satisfied. In addition, the condition stipulated in Section 134(2) of the Trade Marks Act, 1999 is also satisifed because the plaintiff has averred that it has a corporate office in Delhi and part of the cause of action has allegedly also arisen in Delhi.
Therefore, either way, this Court, in our view, would have jurisdiction to entertain the present suit. The observations and the findings of the learned Single Judge to the contrary, are wrong and are set aside.
30.On close scrutiny of the facts in RSPL case cited, it is found that while deciding the appeal against the Order of Single Bench of allowing the Order 7 Rule 10 CPC application the Division Bench has reproduced the relevant para for cause of action and territorial jurisdiction. It would be handy to read the same in contradistinction with the factual averments available in the plaint in hand. For the convenience sake, the RSPL case, the cause of action and territorial jurisdiction paras are reproduced hereunder:
3. It is averred by the adoption and use of the impugned trade mark-GHARI TRADEMARK COMPANY-in relation to the said services, the defendants are guilty to infringing the registered trade mark/label of the plaintiff/appellant. With regard to the date of knowledge, cause of action and territorial jurisdiction, the plaintiff made the following averments:
(35) That in the month of 3rd week of November 2014 the plaintiff received the caveat petitions filed by the defendants in different District Courts, Delhi, whereby the defendant alleged to be engaged under the impugned trade name GHARI TRADE MARK COMPANY under the impugned services.
The plaintiffs further inquiry revealed that the defendants have very recently started the impugned activity under the impugned trade name. The defendants' user thereof (if any) utmost would be clandestine, surreptitious, sporadic restricted, minimal and very recent and all making it very difficult to detect and verify the precise nature of the defendants' activities. The defendant's impugned user, if any, is void-ab-initio.
CS Comm. No.457/2021Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages page 19
31.On the other hand in case title Conzerv Systems Private Ltd. Vs. T K Babu (2008) Latest Caselaw 1399, Del, Hon'ble Delhi High Court while dealing with Order 7 Rule 11 CPC application in a trademark, copyright and passing off infringement suit wherein issue of territorial jurisdiction was involved observed:-
"It is a settled legal proposition in law that at the state of Order 7 Rule 11 CPC, the plaint and the plaint alone is to be looked into. From a bare look of the plaint, in the present case, it cannot be said that the same disclose this Court to be having territorial jurisdiction."
32.In ITC Ltd. Vs. Debt Recovery Appellate Tribunal, 1997 Latest Caselaw 869 SC Hon'ble Apex Court held, "Law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint. If however, by clever drafting of the plaint, it has created the illusion of a cause of action, it should be nipped in the bud, so that bogus litigation will end at the earliest state. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the Court."
(Emphasis Supplied)
33.In Azhar Hussain Vs. Rajiv Gandhi, 1986 Latest Caselaw 93 SC Hon'ble Supreme Court held that the whole purpose of conferment of powers under Order 7 Rule 11 CPC is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to waste judicial time of the Court, in the following words:
"12...The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by law."CS Comm. No.457/2021
Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages page 20
34.Coming to the facts of this case, as referred and reproduced supra, in para 32, 53 and 54 of the plaint. Plain reading of para 32 of the plaint shows that it is a pleaded case of the plaintiff that defendant is engaged in the business of sale of eatables from his sole outlet at Muzzarfarpur, Bihar. Para 33 of the plaint is reproduced hereunder:
32."That the defendant is also engaged in the same nature of trade and business of manufacturing, marketing and selling of variety of Nammeen, Snack Foods, Puffs, Chips, Ready to Eat Snacks, Confectionary, Indian Sweets, Biscuit, Cookies, Coffee, Tea, Flour and preparations made from Cereals, Bread, Pastry and Confectionary etc., and are offering restaurant and hotel services (hereinafter referred to as the 'impuged goods and services') from the address mentioned in the Memo of Parties. The defendant has adopted identical and deceptively similar trade "Picture logo of Plaintiff" "Picture logo of defendant"
mark/trade name/logo/label (hereinafter referred to as the 'impugned trade mark/trade name/logo') in relation to abovementioned impugned goods and services."...........
33."That the plaintiff came to know about the adoption of the impugned infringing mark/name/logo by the Defendant in month of September 2021 in the course of trade and business. The plaintiff further launched enquiry in the market in order to ascertain whether the defendant is carrying on any business under the impugned trademark/label/name in the course of trade and business when in the month of September, 2021, the plaintff laid hands to the impugned goods/services of the defendant under the impugned trademark/label/name. The defendant has recently commenced use of the impugned services bearing the impugned trademark/label. The defendant is misrepresenting the impugned trademark/label as the trademark of the plaintiff and passing off its impugned and substandard services as the goods of the plaintiff.
35.That plaintiff did carry out enquiry in the market to ascertain if the defendant is infringing the plaintiff's trademark but there is no reference that such an enquiry was carried out within the jurisdiction of this Court i.e. District Shahdara, Delhi. Rather on conjoint reading of para 32 and 33, plaintiff is conveying that such enquiries would be carried out by the plainitff in Muzzafarpur, Bihar outlet of the defendant.
36.Perusal of cause of action in para 53 of the plaint shows that it is referring to accrual of cause of action in September 2021 when as per text of this para plaintiff came across the impugned goods and services of the CS Comm. No.457/2021 Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages page 21 defendant. In so far as this whole para 53 does not refer to availability of such goods and services of defendant in District Shahdara when read in conjunction with para 32 and 33 of the plaint it is evident that such goods and services are of defendant are referred to as being available in Muzzafarpur, Bihar. Plaintiff claims to have made some test purchasers qua infringement on the part of defendant but no such invoice was cited or filed before the Court either with the plaint or during the course of hearing so as to show that such activities are taking place within jurisdiction of this Court.
37.It is in this backdrop that in the above jurisdiction para 54 of the plaint sub para (a) only talks about plaintiff's trademark and copyright. Sub- para (b) solely dealt with the fact that the plaintiff's merchandise are available in Shahdara markets through its dealers/distributors and that they are providing restaurant services in District Shahdara. Sub-para (c) only elaborates that plaintiff's merchandise are available on their in house website www.haldiram.com apart from third party vendors like Amazon, Big Basket and Flipkart etc. There is absolutely no para dedicated to any activity of the defendant which can be said to be an act of infringment of passing off. The combined reading of para 54 (a), 54 (b) and 54 (c) which only refer to plaintiff's activities in Shahdara are being cited as grounds for filing of the suit in hand against the defendant.
38.Comparing the above pleadings qua cause of action jurisdiction with the RSPL Judgment (supra) and it is found that the case in hand that there is no parity of the case in hand with that of the cited case in so far as in the RSPL Judgment in para 35 meant for cause of action and jurisdiction, as reproduced supra, there were categorical assertions that the plaintiff therein was served Caveat petitions by the defendant and that the enquiries carried out by the defendant revealed that the defendant has CS Comm. No.457/2021 Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages page 22 recently started clandestine, surreptitious, sporadic, restricted sales of the infringing material. None of the such-like allegations are present in the suit in hand. Rather there is an admission on the part of plaintiff that the defendants are carrying out business through his sole outlet at Muzzafarpur, Bihar.
39.Furthermore, there is no allegation that defendant has any online presence either through their own interractive websites or through any third party grocery portal.
40.Moreover, the fact that even the LC which was got issued through Ld. Predecessor of this Court was taken all the way to Muzzarfarpur, Bihar and not to any place within the jurisdiction of this Court in Shahdara Delhi. Accordingly, following factual conclusions can be drawn out of plaint and the annexed documents.
Principal/Head/Regi Address of the Branch/Office/Plac Cause of Action in
stered Office of the Defendant e of Business of the suit
Plaintiff Plaintiff:
Corporation
Mathura Road, New Muzzarfarpur City, Pan India through Muzzafarpur City,
Delhi Bihar online presence and Bihar
company on
physical outlets.
41.Applying the ratio of IPRS Vs. Sanjay Dalia Judgment of Hon'ble Supreme Court as elucidated by Ultra Home Judgment Division Bench Judgment (supra) the table prepared by the Delhi High Court and the four cases cited therein show that the plaintiff is duly covered in third case in so far as while its principal office is in South Delhi but it is deemed to be carrying on business at Muzzafarpur, Bihar where the cause of action also took place as per plaint and in such a case plaintiff could have validly filed the suit only at Muzzafarpur.
CS Comm. No.457/2021Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages page 23
42.Accordingly, this Court has no hesitation in concluding that the plaint and its annexures, when read cumulatively in the light of statutory provisions and the benchmark judgment of Hon'ble Supreme Court in IPRS and Ultra Home Construction Judgments (supra) show that plaintiff has failed satisfy the Court that Commercial Courts at Shahdara have territorial jurisdiction to try this suit.
43.Hon'ble Supreme Court has ruled that Court should be at guard against litigants engaged in clever drafting and creating illusions of cause of action by suppressing the material facts and camouflaging the pleadings.
44.In the light of the above settled legal proposition, when the plaintiff has the benefit of demurrer under the law, it is duty of the plaintiff to come clean on facts and elucidate the pleadings with necessary facts and particulars pertaining to cause of action and jurisdiction so that it leaves no room for ambiguity. While it is true that for the purpose of jurisdiction the contents of the plaint are to be believed on the face of it but it does not ipso facto mean that the bald unelaborated one liner plea "that this Court has territorial jurisdiction", which is bereft of any detail whatsoever shall be treated as sufficient to confer territorial jurisdiction. In the case in hand even this bald statement is absent and rather in para 32 and 33 it is admitted case of the plaintiff that the defendant is carrying on his business only a standalone single outlet that too in Muzzafarpur, Bihar.
45.In the absence of any figment of material or evidence to show that any infringement of the said Trademark, Copyright or violation of any Passing Off Rights ever took place in Delhi this Preliminary Issue is decided against the plaintiff and in favour of defendant and this suit is returned. In terms of this order, interim orders passed are vacated and CS Comm. No.457/2021 Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages page 24 pending applications are deemed dismissed for want of Territorial Jurisdiction in this Court.
46.Lastly, it is argued by Ld. Counsel for plaintiff that upon issuance of notice of the suit while filing the WS in this matter defendant has also filed a counter claim and as such it should be treated that he has admitted the territorial jurisdiction of this Court. I see no strength in this plea in so far as conferment of territorial jurisdiction is not within the domain of either or both the litigating sides. Rather existence of territorial jurisdiction has to borne out of the facts pleaded in the plaint and the documents annexed. Since as this is a case of clever drafting plaint is ordered to be returned under Order 7 Rule 10 CPC for want of territorial jurisdiction as per applicable rules. In so far as defendant has incurred expenses in defending the suit, plaintiff is directed to pay Rs.10,000/- to the defendant by way of cheque within 4 weeks and Rs.25,000/- to be deposited to Shahdara Bar Association by the plaintiff as cost.
47. File be consigned to Record Room after due compliance.
(SURINDER S. RATHI) District Judge Commercial Court-03 Shahdara District, KKD Delhi/23.01.2023.
CS Comm. No.457/2021Haldiram India Pvt. Ltd. Vs. S.K. Food and Beverages page 25