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7. The learned single Judge, inter alia, held that though Section 62(2) of the Copyright Act and Section 134(2) of the Trade Marks Act start with the non- obstante clause, the expression 'actually and voluntarily resides or carries on business or personally works for gain' is necessarily to be interpreted in the light of the explanation to Section 20 of the Code of Civil Procedure. Therefore, mere fact that the plaintiff's branch office is situated within the territorial jurisdictional limits of the Court is not sufficient to clothe the Court with the jurisdiction to entertain the suits. The learned single Judge also accepted the case of the defendants that no essential part of business of the defendant takes place in Chennai. The learned single Judge further relying upon a judgment of Ashok Kumar, J. in Maya Appliances v. Pigeon Appliances , which was followed by Justice S. Rajeswaran in the Santoor Sandal and Turmeric Soap Wrapper matter in Laxmi Soap Factory v. Wipro Ltd. Application No. 2447 of 2006 : C.S. No. 434 of 2006 dated 11.4.2007, held that since the defendants are carrying on business in Kerala, prior leave to sue under Clause 12 of the Letters Patent ought to have been obtained. Consequently, both the suits were rejected.

Explanation.- For the purposes of Sub-section (2), "person" includes the registered proprietor and the registered user.

11. While it is the contention of the plaintiffs that they can institute a suit either in a court within whose local limits the principal place of business or its branch or branches where its business is carried on, is situate, the defendants submitted that it is the principal place of business that is material. According to the defendants, it is the only reasonable interpretation of Section 62(2) of the Copyright Act and Section 134(2) of the Trade Marks Act, and therefore, as the head office of the plaintiffs is at Bangalore, courts in Bangalore alone will have jurisdiction. Section 62(1) of the Copyright Act stipulates the forum for institution of infringement proceedings, etc., to be the District Court. Section 62(2) of the Copyright Act provides that the term "District Court having jurisdiction", notwithstanding anything contained in the C.P.C or any other law for the time being in force, would include a District Court within the local limits of whose jurisdiction, the person, or one of the persons, instituting the suit actually or voluntarily resides or carries on business or personal works for gain. By inserting Section 134(2) of the Trade Marks Act, the legislature has brought the Trade Marks law in line with the provisions contained in the Copyright Act, as very often a trade mark is also registered as an artistic work under the Copyright Act. In Section 62(2) of the Copyright Act as well as in Section 134(2) of the Trade Marks Act, a deliberate departure is made from Section 20 of the C.P.C to enable the plaintiff to sue one who infringed his copyright in the court within whose local limit he carried on business at the time of the institution of the suit or other proceedings. If the contrast as between two expressions namely, "actually and voluntarily resides" and "carries on business" is correctly perceived, it would reveal that while there is limitation, regarding residence, there is no such restriction with reference to "carrying on business". This is a clear indication that the term "carries on business" is not confined to only principal place of business. If the Legislature intended to mean the principal place only, it would have suitably qualified the expression "carries on business". The plain meaning of the above expression will only convey that wherever there is a business activity - be it the principal place or branch or branches - the party is said to carry on business in all such places.

15. In our opinion, the judgments relied on by the learned counsel for the defendants in Maya Appliances v. Pigeon Appliances, and Laxmi Soap Factory v. Wipro Ltd. [supra] are based on complete misconstruction of Clause-12 of the Letters Patent. It has been held in these cases that since the defendants are carrying out businesses outside the jurisdiction of this court, prior leave to sue under Clause-12 of the Letters Patent ought to have been obtained. Under Clause-12 of the Letters Patent a suit can be filed in the High Court in its Original Side if at the time of commencement of an action, the defendant was carrying on business within its territorial limits. Similarly, when the cause of action has wholly or partly arisen within its territorial limits, the High Court has jurisdiction to try the suit notwithstanding the fact that the defendant does not carry on business within its territorial limits. In other words, the jurisdiction based on the cause of action and the jurisdiction based on the person of the defendant are two independent categories and they have no relation with each other. A plain reading of Clause-12 of the Letters Patent would show that it is only in cases where a part of the cause of action has arisen within the jurisdiction of this Court that Clause-12 requires a leave to be obtained. The present case is not covered by Clause-12 of the Letters Patent, but a case covered by Section 62(2) of the Copyright Act and Section 134(2) of the Trade Marks Act. Therefore, the suit is maintainable in this Court.

16. In our opinion, the legal position is correctly laid down in Arvind Laboratories v. Hahnemann Laboratory Pvt. Ltd. 2007 (35) PTC 244, where a learned single Judge of this Court has held as follows:

23. The defendant has not disputed the fact that the plaintiff is carrying on business within the jurisdiction of this Court and that the plaintiff is the Proprietor of a registered trade mark, of which, infringement is complained of in the present suit. It is seen from Section 134 of the Trade Marks Act, 1999, that it contemplates three types of suits viz., (a) suit for infringement of a registered trade mark (b) suit relating to any right in a registered trade mark and (c) suit for passing off. In view of Sub-section (1) of Section 134, all the above three types of suits are to be instituted only in a Court not inferior to a District Court having jurisdiction to try the suit. Sub-section (2) of Section 134, defines the expression 'District Court having jurisdiction' found in Sub- section (1), to include a District Court within whose jurisdiction the plaintiff resides or carries on business at the time of institution of the suit, if the suit is in respect of a registered trade mark. Therefore, a special privilege is conferred upon the Proprietor of a registered trade mark to institute a suit for infringement or a suit relating to any right in a registered trade mark, in the District Court within whose jurisdiction, he resides or carries on business. This privilege is conferred by Section 134(2), with a non abstante Clause, by using the phrase 'notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force'. Since Section 134(2) declares that it would hold the field, notwithstanding anything contained in the CPC or any other law for the time being in force, the same cannot be annulled or rendered nugatory, by importing the requirements of Clause 12 of the Letters Patent into a case covered by Section 134(2) of the Trade Marks Act, 1999. The non abstante Clause automatically excludes the operation of the Letters Patent also, to a case covered by Section 134(2) of the Trade Marks Act, 1999. Therefore, in a case of infringement of a trade mark, covered by Section 134(2) of the Trade Marks Act, 1999, the question of the plaintiff taking prior leave of the Court, under Clause 12 of the Letters Patent, does not arise. In other words, in a suit for infringement covered by Section 134(2), a plaintiff need not take the leave of the Court under Clause 12 of the Letters Patent, even if only a part of the cause of action or no part of the cause of action, arose within the jurisdiction of this Court.