$~29 & 30.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11035/2015 & CM APPL. 28492/2015 (STAY)
VIFOR (INTERNATIONAL) LIMITED ..... Petitioner
Through : Mr.Sudhir Chandra and Mr.Gopal Jain,
Sr. Advs. with Ms.Vaishali Mittal,
Mr.Siddhant Chamola, Mr.Aditya Gupta,
Ms.Kritika Vijay and Ms.D.Neha Reddy,
Advs.
versus
THE HIGH COURT OF DELHI ..... Respondent
Through : Mr.Sanjoy Ghose, Adv.
+ W.P.(C) 11043/2015 & CM APPL. 28506/2015 (STAY)
ASIAN PATENT ASSOCIATION ( INDIAN GROUP) ..... Petitioner
Through : Ms.Pratibha M. Singh, Sr. Adv. with
Ms.Radha Chawla, Mr.Devanshu Khanna
and Ms.Tara Ganju, Advs.
versus
REGISTRAR GENERAL,DELHI HIGH COURT ..... Respondent
Through : Mr.Raj Shekhar Rao, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
ORDER
% 03.12.2015 In this matter, we have had the benefit of hearing learned senior counsel appearing on behalf of the petitioners and counsel for the respondent.
W.P.(C) Nos.11035/2015 & 11043/2015 Page 1 of 6The prayer made in these writ petitions being common is that the cases, arising out of the five Statutes i.e. Patents Act, 1970; Trademarks Act, 1999; Designs Act, 2000; Copyright Act, 2000; and The Geographical Indications of Goods (Registration And Protection) Act, 1999, of the value less than Rs.1.00 crore are not required to be transferred in view of the Proviso to Section 7 of the Commercial Court, Commercial Division and Commercial Appellate Division Ordinance, 2015 (hereinafter referred to as „Proviso to Section 7 of the Ordinance‟).
Section 7 and the First Proviso to Section 7 of the Ordinance reads as under:
"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 commercial disputes, stipulated by an Act to lie in a court not inferior to a District Court, and filled on the original side of the High Court, shall be heard and disposed of by the Commercial Division of the High Court."
Learned senior counsel appearing on behalf of the petitioners submit that as per the various Sections of the aforestated five Acts, a suit would not lie in any Court inferior to a District Court. In support of this submission, learned senior counsel rely upon the relevant Sections, Actwise, which read as under:
Statute Patents Act, Trademarks Designs Copyright Act, Geographical 1970 Act, 1999 Act,2000 1957 Indications Of Goods (Registration And Protection) Act, 1999 Relevant Section 104 Section 134: Proviso to Section 62 Section 66 -
Provisions Section Suit for W.P.(C) Nos.11035/2015 & 11043/2015 Page 2 of 6 Jurisdiction- Suit for 22(2) Jurisdiction of infringement, Infringement, court over etc., to be etc. to Be matters arising instituted Instituted under this before district No suit for a Before District No suit or Chapter- court declaration Court-- any other under section proceeding (1) Every suit or 105 or for any (1) No suit-- for relief other civil relief under under this proceeding (1) No suit,-- section 106 or (a) for the subsection arising under for infringement of shall be this Chapter in (a) for the infringement a registered trade instituted in respect of the infringement of of a patent mark; or any court infringement of a registered shall be below the copyright in any geographical instituted in (b) relating to court of work or the indication; or any court any right in a District infringement of inferior to a registered trade Judge. any other right (b) relating to district court mark; or conferred by this any right in a having Act shall be registered jurisdiction to (c) for passing instituted in the geographical try the suit: off arising out of district court indication; or the use by the having defendant of any jurisdiction. (c) for passing trade mark of arising out of Provided that which is (2) For the the use by the where a identical with or purpose of sub- defendant of counter-claim deceptively section (1), and any for revocation similar to the "district court geographical of the patent is plaintiff‟s trade having indication made by the mark, whether jurisdiction" which is defendant, the registered or shall, identical with suit, along unregistered, notwithstanding or deceptively with the shall be anything similar to the counter-claim, instituted in any contained in the geographical shall be court inferior to Code of Civil indication transferred to a District Court Procedure, 1908, relating to the the High Court having or any other law plaintiff, for decision jurisdiction to for the time whether try the suit. being in force, registered or include a district unregistered, court within the local limits of shall be For the purpose whose instituted in any of clauses (a) jurisdiction, at court inferior to and (b) of sub- the time of the a district court section (1), a institution of the having "District Court suit or other jurisdiction to having proceeding, the try the suit. jurisdiction" person shall, instituting the notwithstanding suit or other anything proceeding or, where there are (2) For the contained in the purpose of W.P.(C) Nos.11035/2015 & 11043/2015 Page 3 of 6 Code of Civil more than one clauses (a) and Procedure,1908 such persons, (b) of sub- or any other law any of them section (1), a for the time actually and "district Court being in force, voluntarily havinginclude a District resides or carries jurisdiction"
Court within the on business or shall,
local limits of personally notwithstanding
whose works for gain. anything
jurisdiction , at contained in the
the time of the Code of Civil
institution of the Procedure,
suit or other 1908 (5 of
proceeding, the 1908) or any
person other law for
instituting the the time being
suit or in force,
proceeding, or, include a
where there are District Court
more than one within the local
such persons any limits of whose
of them, actually jurisdiction, at
and voluntarily the time of the
resides or carries institution of
on business or the suit or other
personally works proceeding, the
for gain. 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 authorised
user.
W.P.(C) Nos.11035/2015 & 11043/2015 Page 4 of 6
It is the submission of learned senior counsel for the petitioners that a reading of the Proviso to Section 7 of the Ordinance would show that all the suits and applications relating to commercial disputes stipulated by an Act to lie in a court not inferior to a District Court would pertain to the above five Acts. Interpreting this proviso further, it is submitted that in case any suit arising out of the above five Acts has already been filed on the Original Side of the High Court, the same is to be heard and disposed of by the Commercial Division of the High Court, as per the Proviso to Section 7 of the Ordinance. In effect, the suits pending in this case arising out of the five Acts even if their value is less than Rs.1.00 crore, is to be tried by the Commercial Division of the High Court.
Additionally, it is submitted that in case an application for amendment of the plaint is filed, the respective Single Judges must hear and consider the same in accordance with law, as counsel contend that there are decisions, as per which, an amendment application can be entertained even if the jurisdictional value of the Court has changed (increased or decreased). It is further submitted that such a direction is required as amendment applications are not being accepted by the Registry.
Mr.Ghosh submits that the Ordinance is likely to be replaced by an Act in the Winter Session of the Parliament, which is already underway and the Act in the final form may clarify some of the ambiguities. It is, thus, prayed that both these matters should be taken up in the middle of January, 2016.
After hearing learned senior counsel for the petitioners and Mr.Sanjoy Ghose and Mr.Raj Shekhar Rao, counsel for the respondent/Delhi High Court, we are of the view that, prima facie, interpretation to Proviso to Section 7 of the Ordinance requires consideration. Accordingly, till the next date of hearing, cases arising out of Patents Act, 1970; Trademarks Act, 1999; Designs Act, 2000; Copyright Act, 2000; and The Geographical Indications of Goods (Registration And Protection) Act, 1999, shall not be transferred and in case W.P.(C) Nos.11035/2015 & 11043/2015 Page 5 of 6 application seeking amendment in the pecuniary value is filed, they shall be considered by the respective Single Judges in accordance with law.
List on 19.1.2016.
Let a copy of this order be given DASTI under the signature of Court Master to counsel for the parties.
G.S.SISTANI, J SANGITA DHINGRA SEHGAL, J DECEMBER 03, 2015 msr / W.P.(C) Nos.11035/2015 & 11043/2015 Page 6 of 6