Brief Facts:
The Appellant has filed a suit against the Respondent alleging that he is manufacturing and selling chewing tobacco and other similar products under a trademark that is deceptively like the one which is registered by the Appellant. It is also contended that the Respondent has copied the artwork, and color combinations of the label, and the same amounts to copyright infringement.
The Respondent raised objections alleging that firstly, the Court lacked the territorial jurisdiction and secondly, that the mandatory compliance with pre-institution mediation under Section 12A of the Commercial Courts Act, 2015 (hereinafter referred to as “CCA”) was not done before filing the suit.
The plaint was returned by the Court on the ground of lack of territorial jurisdiction, however, the ground of mandatory compliance with Section 12A was not accepted by the Court.
The present appeal is being preferred against the order by which the plaint was returned under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as “CPC”). A cross objection has also been preferred by the Respondent against the dismissal of the ground that Section 12A was not followed by the Plaintiff and therefore, the suit should be rejected.
Observations of the Court:
With respect to the return of the plaint due to lack of territorial jurisdiction, the Court observed that for deciding whether the plaint is liable to be returned or not, the Court has to accept the averments made in the plaint as true and correct. It opined that for purposes of Order VII Rule 10 of the CPC the Court is not required to go into merits and decide whether the Plaintiff would be able to prove the averments or not. The Court has to consider the averments as correct for deciding whether the plaint is liable to be returned or not.
With respect to Section 12A of the CCA, the Respondent contended that the Appellant should have first filed for exemption, and only after the such exemption was accepted and allowed, the Appellant could have filed a suit.
The Court observed that Section 12A(1) of the CCA lays down that in cases of urgent interim reliefs, there is no need to follow the requirement of pre-institution mediation.
The Court rejected the contentions of the Respondent on the grounds that firstly there is no need for the Plaintiff to enter into pre-institution mediation in cases of urgent interim relief. Secondly, in cases where there is no need for urgent interim reliefs, the rigor of Section 12A is mandatory and there is no discretion in the hands of the Court to exempt the Plaintiff from the same. Thirdly, the Court opined that the decision of whether there is any need for urgent relief or not is solely to be decided by Plaintiff. The same is not contingent on whether the Court grants the relief or not. It is to say that if a suit is filed by the Plaintiff seeking urgent interim reliefs the same cannot be dismissed on the ground that Section 12A was not complied with.
Findings of the Court:
The Court set aside the order returning the plaint due to lack of territorial jurisdiction as in the present case, the averments by the Plaintiff were that the Respondent is selling the goods within the territorial jurisdiction of the court and that via some interactive websites the goods are being advertised, solicited and sold. It was also alleged that the Respondent has advertised its products in a magazine that is being circulated in the jurisdiction of the Court.
Following the principle that the averments in the plaint are to be taken as correct for the purposes of deciding whether the plaint should be returned or not, the Court set aside the order.
With respect to the cross-objection preferred by the Respondent, the Court opined that the compulsory mediation is only to be followed when Plaintiff is not seeking urgent relief. Since, in the present case the Appellant/Plaintiff sought an urgent interim relief, he is not bound to follow Section 12A, and therefore, the cross-objection preferred by the Respondent is also dismissed.
Cause Title: Chandra Kishore Chaurasia v. RA Perfumery Works Pvt. Ltd.
Bench: HMJ Vibhu Bhakru, HMJ Amit Mahajan
Decided On: 27.10.2022
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