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3. On 14-11-2008, the Managing Director of the defendant sent a letter informing the plaintiff that, what was assigned to the plaintiff was restricted to bicycles and the defendant is about to conclude a trade arrangement with a foreign manufacturer. The defendant had filed an application for registration of trademark. The plaintiff sent a reply asserting that they have absolute rights for the trademark BSA and there has never been a restriction or protest to the use of the said trademark for all goods under Clause 12. Again the defendant sent a letter on 22-12-2008 stating that the plaintiff would not have been given any rights over the trademark BSA with regard to motorised cycles fearing that the defendant may in time enter into the Indian market, the plaintiff filed the suit and asked for injunction both against passing off and against registration of trademark. In the counter filed to the applications, the objection regarding jurisdiction was taken and that a mere letter written by the defendant cannot give jurisdiction to this Court. According to the defendant, in May 1957, the Birmingham Small Arms Company Ltd., then the world's largest motorcycle make, sold its interest to Raleigh Industries Ltd, and the agreement governing the sale dated 23-05-1957 delineated the conditions for the use of the various trademarks, and BSA Cycles never had the right to use the trademark in respect of motorcycles. All that it had was the right to use the trademark for pedal cycles, bicycles and carts and therefore, the assignor could not have transferred the rights which it did not have to the plaintiff by the Deed of Assignment. The defendant had made an application to register the trademark BSA for power-vehicles in India and though it was pending for 22 years was abandoned in August 2003. Thereafter, a fresh application was made on 27-08-2008. When the defendant came to know about the plaintiff's intention to launch motorvehicles with the trademark BSA, the defendant wrote a letter on 14-11-2008. According to the defendant, in fact they should have brought an action to restrain the applicant and without responding to the request for an amicable solution only with a view to force-up the defendant by filing a suit, this suit has been filed. According to the respondent, neither prima facie case nor the balance of convenience is in favour of the plaintiff. A separate application was filed for rejecting the plaint on the ground of jurisdiction and this was resisted by the plaintiff on the ground that by virtue of Section 134(2) of the Trade Marks Act 1999, the plaintiff has the right to institute the suit before the Court upon whose jurisdiction they carry on business. The learned Single Judge as stated earlier has dismissed both the applications.

(i) In 2008 37 PTC 269(Mad.)(DB) (Wipro Limited & Anr. Vs. Oushadha Chandrika Ayurvedic India (P) Limited & Others) the Division Bench of this Court considered a similar question and the following paragraphs are relevant:

"14. It is, thus, seen that Section 62 of the Copyright Act and Section 134 of the Trade Marks Act prescribe an additional ground for attracting the jurisdiction of a Court over and above the normal ground, as laid down in Section 20 of the C.P.C. In other words, a special right is conferred on the proprietor of the registered trade mark to institute a suit for infringement of any trade mark or copyright in the district within whose jurisdiction he resides or carries on business. The provision contained in non-obstante clause by using the phrase "notwithstanding anything contained in the C.P.C, 1908 (5 of 1908) or any other law for the time being in force" is made with a view to give a overriding effect to the said provision. It is equivalent to saying that the provision would hold the field notwithstanding anything contained in the C.P.C or any other law for the time being force. Moreover, by virtue of Section 120 of the C.P.C, the provisions of Section 20 are not applicable as far as High Court is concerned. Therefore, the scope of this section cannot be curtailed by reference to Section 20 of the C.P.C or Clause-12 of the Letters Patent. Therefore, in a case of infringement of trade mark or copyright covered by Section 134(2) of the Trade Marks Act or Section 62(2) of the Copyright Act, the question of plaintiff taking prior leave under Clause 12 of the Letters Patent does not arise and the plaintiff need not take 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, if the plaintiff ordinarily resides or carries on business within the jurisdiction of the Court.

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.