Madras High Court
Chennai Ananda Bhavan vs M/S. Adyar Ananda Bhavan Sweets & Snacks
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
A.No.4354 of 2019 in C.S.No.982 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
13~09~2019 23~09~2019
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
A.No.4354 of 2019
in C.S.No.982 of 2017
Chennai Ananda Bhavan
Kinfra P.O.Muringoor Koratti,
Cochin-Thrissur Highway NH-47
Thrissur - 680309, Kerala. .. Applicant/Defendant
.Vs.
M/s. Adyar Ananda Bhavan Sweets & Snacks
Rep.by its Partner K.T.Venkatesan
Muthulakshmi Bhavan, No.9, M.G.Road,
Shastrinagar, Adyar, Chennai 600020. .. Respondent/Plaintiff
***
Prayer: Application has been filed to reject the plaint in C.S.No.982 of
2017 under Order VII Rule 11 of C.P.C.
For Applicant : M/s. Pa.Anjana
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http://www.judis.nic.in
A.No.4354 of 2019 in C.S.No.982 of 2017
for Mr.R.Prabhaharan
For Respondent : Mr. K. Harishankar
ORDER
This Application has been filed by the defendant for rejection of the plaint under Order VII Rule 11 of C.P.C.
2. It is the main contention of the applicant that the suit as framed and filed by the Plaintiff is not maintainable. The plaintiff has not mentioned any provisions of the Commercial Courts Act, 2015. It is his further contention that the suit has been valued for threee reliefs at Rs.9,000/- and paid a court fee of Rs.675/-. As far as Commercial Division Suits are concerned, under Section 12(1) of the Commercial Courts Act, 2015, relating to commercial disputes, the specific value of the commercial dispute in a suit should be determined, which has been stipulated Rupees One Crore. Subsequently, amendment was made in 2018, thereby reducing the minimum dispute value to Rs.3,00,000/-. Hence the Court fee paid is below the specified value. Hence the plaint has to be rejected. The Respondent disputed the same. 2/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017
3. Learned counsel appearing for the Applicant mainly contended that the object of the Commercial Act provides to constitute commercial courts, commercial division and commercial appellate division only for adjudicating the commercial dispute of a specified value and the specified value shall not be less than Rupees one crore prior to the amendment and subsequently reduced to Rs.3 lakhs. Section 12 of the Act also envisaged how to arrive specified yardstick. The act itself clearly explained the manner in which the specified value of the intangible right has to be calculated. The suit has to be valued under the Commercial Courts Act. Hence, it is the contention that as the present suit is valued only for Rs.9,000/- the same is not maintainable under the Commercial Courts Act.
4. In support of his contention he relied upon the Division Bench judgment of the Delhi High Court Bar Association vs Government of National Capital Territory of Delhi [2013 (203) DLT 129] and Vogel Media Internation GmbH and Another vs. Jasu Shah and others [115(2004) DLt 679]. Hence it is the contention of the learned counsel for the applicant that on conjoint reading of Section 2(c) 2(i) 3/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017 makes it clear that only suit of specified value can be filed before the commercial division of this Court. Therefore, the suit is not maintainable. Further it is his contention that this court does not have territorial jurisdiction to entertain the present suit. The respondent is doing his business only at Kerala, therefore, this suit is not maintainable.
5. Learned counsel appearing for the respondent submitted that Trade Mark suits arising under copy right infringement and trade mark lie onlybefore original side jurisdiction of the High Court Court, since the High Court is all along considered the original jurisdiction to entertain such suits. Further it is his contention that 1st proviso to Section 7 state that all suits relate to the commercial disputes of a specified value filed in a High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of the High Court. Therefore, the amendment cannot be pressed into service in this case. The suit has been filed in the year 2017 and in fact there is no commercial court established in the city of Chennai. Only High Court alone entertaining such suits. The case relates to 4/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017 intellectual property rights is commercial dispute as per the clause 2(c) of the Act. The High Court alone is construed as principal court of jurisdiction to entertain the suit. Specified value cannot be pressed into service. Further it is his contention that the suit under intellectual properties within the city of Chennai will lie only before the High court. When the Act itself stipulated those disputes are commercial disputes, this court is certainly entitled to entertain the suit irrespective of its pecuniary jurisdiction.
6. In support of his contention he relied upon the following judgments:
1. Bharat Bhogilai Patel vs. Leitz Tooling Systems India Pvt. Ltd., [2019 SCC online Bombay 890]
2. M/s. Sundaram Fianance Ltd., vs. M.K. Kurian etc., and another [2006-1-L.W.473]
3. Glaxo Oerations U.K.Ltd., vs. Rama Bhaktha Hanuman Candle & Camphor Works. [1981 SCC online Mad 253]
4. The Daily Calendar Supplying Bureau vs. The United Concern [AIR 1967 Mad 381] 5/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017
7. To adjudicate the issue raised in this application, it will be necessary to set out briefly the relevant portion of the Commercial Courts Act. Section 2(c) (xviii) defines as follows:
2(c) "commercial dispute" means a dispute arising out of--
(xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits;
The above definition makes it clear that any dispute touching upon the intellectual property right, fall within the ambit of commercial dispute. Section 3 deals with the constitution of commercial courts. Section 3 (1A) specify the pecuniary value which shall not be less than three lakh rupees or such higher value. Rs.3 lakhs was amended with effect from 3.5.2018.
8. Section 4 of the Commercial Courts Act, 2015 deals with the constitution of Commercial Division of High Court, reads as follows:
"(1) In all High Courts, having ordinary original 6/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017 civil jurisdiction, the Chief Justice of the High Court may, by order, constitute Commercial Division having one or more Benches consisting of a single Judge for the purpose of exercising the jurisdiction and powers conferred on it under this Act.
(2) The Chief Justice of the High Court shall nominate such Judges of the High Court who have experience in dealing with commercial disputes to be Judges of the Commercial Division."
On a careful reading of Section 4 makes it clear that the Commercial Division Benches are constituted for the purpose of exercising the jurisdiction and powers conferred on it by the Act.
9. Section 7 of the Commercial Courts Act deals with the jurisdictio0n of Commercial Divisions of High Courts which reads as follows:
"7. Jurisdiction of Commercial Divisions of High Courts.—All suits and applications relating to commercial disputes of a Specified Value filed in a High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of that High Court:
Provided that all suits and applications relating to 7/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017 commercial disputes, stipulated by an Act to lie in a court not inferior to a District Court, and filed or pending on the original side of the High Court, shall be heard and disposed of by the Commercial Division of the High Court:
Provided further that all suits and applications transferred to the High Court by virtue of sub-section (4) of section 22 of the Designs Act, 2000 (16 of 2000) or section 104 of the Patents Act, 1970 (39 of 1970) shall be heard and disposed of by the Commercial Division of the High Court in all the areas over which the High Court exercises ordinary original civil jurisdiction. "
10. However, the 1st proviso to section 7 of the Act is an exception to Section 7. The same indicates that all the suits and applications relating to Commercial disputes stipulated by Act lye in a court not inferior to a District Court and filed or pending on the original side of the High Court shall be heard and disposed of by the commercial division of that High Court. The Commercial dispute normally include the disputes relating to the trade mark, copy right or dispute under the Designs Act, patent, geographical indications and semiconductor integrated circuits etc., It is also relevant to note that any suit in respect of infringement of trade mark shall be instituted 8/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017 before the District Court. Similarly under Section 62 of the Copy Right Act and Designs Act mandate a suit is lie only before the District Court.
11. In The Daily Calendar Supplying Bureau's case (supra) this Court held that the term "District Court" defined under Section 62 (1) of the Copy Right Act given the same meaning as in Section 2(4) of the Code of Civil Procedure and that as far as the area of presidency town of Madras is concerned High Court exercising its original civil jurisdiction over the city limits and not the City Civil Court.
12. In Ramamirtham vs. Rama Film Services (Full Bench) [AIR (38) 1951 Madras 93] this court held that as far as city of Chennai is concerned the word "Principal Civil Court of original jurisdiction" as defined under section 2(1)(e) of the Act would need High Court exercising provision under Original side and not the City Civil court.
13. Similarly, in Raja Soap Factory v. S.P.Shantharaj [AIR 1965 SC 1449] wherein the Supreme Court while construing the 9/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017 definition "District Court" under Section 2(e) of the Trade Mark and Merchandise Marks Act, 1958, has observed as follows:
"3. .. The expression District Court has by virtue of S. 2(3) of Act 43 of 1958 the meaning assigned to that expression in the Code of Civil Procedure, 1908. Section 2(4) of the Code defines a district as meaning the local limits of the jurisdiction of a principal civil Court called the District Court and includes the local limits of the ordinary original civil jurisdiction of a High Court. If, therefore, a High Court is possessed of ordinary original civil jurisdiction, it would, when exercising that jurisdiction be included, for the purpose of Act 43 of 1958, in the expression District Court. (emphasis supplied) "
14. Section 22 of the Designs Act also indicates that the suit to be instituted only by the District Judge and not lower than the District Judge.
15. Section 104 of the Patent Act mandates, suit should be instituted only before the District Court and not any court inferior to District Court. Further, the proviso of Section 104 also makes it clear that any counter claim for revocation of patent is made, the suit along 10/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017 with the counter claim shall be transferred to the High Court for decision. As far as Chennai City is concerned, the jurisdiction ordinarily vested in the High Court and not in the City Civil Court. Clause 12 of the Letter Patent, the High Court has unlimited original jurisdiction, the jurisdiction was expressly saved under section 16 of the Chennai City Civil Court Act. So when the High Court exercising the ordinary Original Civil jurisdiction, the suits arising out Copy Right Act, Designs Act, Patent Act, Trade Mark Act lie only to High Court. That being the position, all the commercial suits have filed before the High Court and pending on the original side, it should be tried and disposed by the commercial division of the High Court, as per the first proviso of Section 7 of the Commercial Courts Act.
16. The proviso that all suits and applications relating to the commercial disputes stipulated in the Act lye in a suit not inferior to the District Court and filed or pending on the original side of the High Court shall be heard and disposed by the Commercial Division of the High Court only. The word "filed or pending" clearly indicate that any commercial suits lye in a court not inferior to the District Court 11/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017 normally filed before the High Court. Therefore, not only those suits but also pending such suits, only the commercial division of the High Court can dispose of the suits. Therefore, it cannot be contended that the High Court has jurisdiction to decide the commercial dispute of specified value alone. The exception provided under the proviso 1 of Section 7, takes care of all other suits arising under the various enactment like trade marks, copy right, patent, etc., Therefore, the contention of the learned counsel for the applicant that this court has no jurisdiction to decide the suit cannot be countenanced. The judgment of the Delhi High Court relied upon by the learned counsel cannot be applied in this case. As far as city of Chennai is concerned the High Court is exercising its original civil jurisdiction over the city, not the City Civil Court.
17. This Court has also issued Notification No.28 of 2018 in exercising of power conferred under Section 18 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 (Act 4 of 2016), wherein clause 2 defines, suits and applications therein relating to a commercial dispute 12/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017 within the meaning of Section 2(1)(c)(xvii) of the Act 4 of 2016 filed or pending on the original side of this Court which attract any one or more of the provisions viz., Section 134(1) of Trademarks Act 1999, Section 62(1) of Copy Right Act, 1957, Second Proviso to Section 22(2) and Section 22(4) of Designs Act, 2000, Section 104 of Patents Act, 1970, Section 66(1) of Geographical Indications of Goods (Registration and Protection) Act, 1999 shall be entertained by the commercial division of this Court.
18. The word “filed or pending” in the first proviso of Section 7 clearly indicate that the suits which are in commercial nature, normally filed before this Court also to be disposed by the commercial division. If the legislature has intended to omit all the commercial disputes outside the purview of the commercial division of the High Court the word “filed” would not have been incorporated in the proviso. Instead pending suits or applications alone would have been there. Accordingly the contention of the learned counsel for the applicant cannot be countenanced. With regard to the territorial jurisdiction, it is to be noted that earlier orders have been challenged before the 13/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017 Division Bench of this Court and the Division Bench of this Court in O.S.A.No.255 of 2018 while dismissing the appeals has held that the territorial issue can be decided by framing an issue and it can be decided along with the suit. Such being the position the same ground cannot be agitated. That issue is left open at the time of trial. In view of the same the application is liable to be dismissed.
19. With the above observation, this application is dismissed.
23.09.2019 Index : Yes / No Internet: Yes Speaking/Non-speaking order ggs 14/15 http://www.judis.nic.in A.No.4354 of 2019 in C.S.No.982 of 2017 N. SATHISH KUMAR, J.
ggs order in:
A.No.4354 of 2019in C.S.No.982 of 2017
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