Pfizer Products, Inc. vs B.L. And Co. And Ors.
2005 Latest Caselaw 1390 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. These suits have been filed by the plaintiff-company against different defendants for injunction, damages, passing off and unfair competition. The plaintiff claims in different plaints that the defendants are selling products under offending trade marks deceptively similar to the trade marks of the plaintiff. The plaintiff is a corporation organized and existing under the laws in the USA and claims to be a global research based pharmaceutical company with world-wide performance which has been acclaimed. The world-wide sales figures are stated to be of nearly one thousand million dollars for trade mark Viagra, and, similarly for other trade marks, the world-wide sales of the plaintiff-company are running into millions of dollars. The common question which arises in all these suits is on account of the valuation done by the plaintiff for Court fee and jurisdiction purposes. Relevant para 42 is as under:

The value of the suit for the purposes of Court fee and jurisdiction is as follows-

(a) For an order of permanent injunction each injunction is valued for purposes of Court fee and jurisdiction at Rs. 200 each and Court of Rs. 100 is affixed thereon.

(b) For an order of delivery up and mandatory injunction, each injunction relief is valued for the purposes of Court fee and jurisdiction at Rs. 200 each and Court of Rs. 40 is affixed thereon.

(c) For an order for accounts of profits, this relief is provisionally valued for the purposes of Court fee at Rs. 5,00,050 and Court fee of Rs. 7273 is affixed thereon, the plaintiff however expects that at the time rendition of accounts they shall be entitled to an amount in excess of Rs. 50,00,000. For purposes of the jurisdiction the suit for rendition of accounts is valued at Rs. 50,00,050. The plaintiff undertakes to make up the deficiency of Court fee after the accounts are rendered are profits evaluated.

2. It is stated that there is similar paragraph in all the plaints.

3. The question which has arisen is if the valuation for purpose of Court fees is taken correctly at Rs. 5,00,050 on which Court fees has been paid, is the suit liable to be transferred to the District Courts, during the pendency of the suit, in view of the increase of the pecuniary jurisdiction of this Court?

4. The second linked question arises from the fact that the plaintiff has valued the suit for purposes of rendition of accounts in excess of Rs. 50,00,000. If this valuation is taken into account, the question arises whether the plaintiff is liable to pay ad valorem Court fee on this amount?

5. The submission of the learned Counsel for the plaintiff is that it is open to the plaintiff to assign different valuations for purposes of Court fees and jurisdiction and the plaintiff has valued the suit for purposes of Court fee at Rs. 5,00,050 while valuing the suit for purposes of jurisdiction at Rs. 50,00,050. It is thus submitted that since for purposes of jurisdiction the suit is valued at over rupees fifty lakh, this Court would have pecuniary jurisdiction to try and determine the present suit and the proper Court fee has been affixed for purpose of valuation for Court fees.

6. The submission of the learned Counsel for the defendants is that suit is not properly valued for purposes of Court fees and jurisdiction and that the plaint ought to be rejected in view of Order 7 Rule 11 of Code of Civil Procedure, 1908 (hereinafter referred to as 'Code') as the plaintiff is bound to pay Court fees on the amount of Rs. 50,00,050 and having valued at that amount, there is no other option for the plaintiff. It is submitted that the plaints are not liable even to be transferred to the District Court on increase of pecuniary jurisdiction, but the plaintiff should either make up the deficiency of Court fees or the plaints be rejected under Order 7 Rule 11 of Code.

7. The controversy falls under a narrow legal compus. Certain common judgments have been referred by learned Counsel for the parties in this behalf. The first judgment referred to is of the Apex Court in Commercial Aviation & Travel v. Vimla Pannalal . Learned Counsel for the plaintiff emphasizes the fact that the Supreme Court has laid down that it is almost impossible for a plaintiff to value the relief correctly in suit for accounts and so long as the account is not taken, it cannot be determined as to what amount, if at all, would be found payable to the plaintiff on such accounting taking place. The judgment discusses the question of valuation and provisions relating to the rejection of the plaint under Order 7 Rule 11(b) of the Code. It has been emphasised that insofar as the provisions of Section 7(iv) of the Court Fees Act is concerned, the Legislature has left the question of valuation of the relief sought in the plaint or memorandum of appeal to the plaintiff. The Legislature has also not laid down any standards for valuation in the Court Fees Act and under Section 9 of the Suits Valuation Act the High Court may frame rules for valuation of suits referred to in Section 7(iv) of the Court Fees Act. The rules of the Punjab High Court as applicable to Delhi do not lay down any standards of valuation in such cases. In such cases the Court has no other alternative than no accept the plaintiff's valuation tentatively. However, at the same time it has been emphasised that the valuation cannot be arbitrary and where there are objective standards of valuation or the Court can reasonably value the reliefs correctly' on certain definite and positive materials, the plaintiff will not be permitted to put an arbitrary valuation de hors such objective standards or materials.

8. In the end, learned Counsel emphasizes that in para 24 of the said judgment, the Apex Court has upheld a different valuation for purposes of Court fee and jurisdiction in such suits for accounts.

9. Learned Counsel for plaintiff has also referred to a short order of Division Bench of this Court in Fenner India Ltd. v. Salbros Enterprises Pvt. Ltd. 1997 PTC (17)(DB) where it was held that there can be difference of valuation for purposes of Court fees and jurisdiction.

10. Learned Counsel for the defendants have emphasised on the law laid down in the case of Commercial Aviation & Travel v. Vimla Pannalal's case (supra). Learned Counsel submit that the plaintiff has himself valued the suit at Rs. 50,00,050 albeit for purposes of valuation. However, the relevant paragraph states that the same is at least the amount which plaintiff feels would be due and payable on rendition of accounts and the plaintiff must affix Court fees on the said amount. In this behalf my attention has also been invited to para 18 of the said judgment where judgment in Meenakshisundaram Chettiar v. Venkatachalam Chettiar has been considered to come to the conclusion that the amount at which the plaintiff values the relief sought for should be a reasonable estimate.

11. Learned Counsel for defendants has also pointed out and referred to the judgment of the Apex Court in Abdul Hamid Shamsi v. Abdul Majid AIR 1988 SC 1150 which is to the same effect directing that though the plaintiff is allowed to give his tentative valuation and ordinarily the Court is not to examine the correctness of the valuation chosen, the plaintiff cannot act arbitrarily in this matter. Learned Counsel for defendants has laid emphasis on two judgments of the same learned Judge of this Court where these very judgments of the Apex Court have been considered. These two cases are of Suit No. 1584/1994, Eastman Kodak Company v. M.R. Electronics and Ors. 1994 (31) DRJ 485 : 56 (1994) DLT 79 : 1995 (15) PTC 146 (Del), decided on 1.8.1994 and Suit No. 412/1994, Automatic Electric Limited v. R.K. Dhawan and Anr. , decided on 17.10.1994. Vijender Jain, J. in the said two judgments has referred to the fact that when there is basis available for valuation for purposes of Court fee, it is not open to the plaintiff to value it arbitrarily. These were the cases where the plaintiff claimed world-wide turn over running into crores of rupees and it was held in view thereof that for purposes of rendition of accounts for payment of Court fees the valuation cannot be much smaller amount than fixed for purposes of jurisdiction.

12. I am in full agreement with the view expressed by Vijender Jain, J. on the aforesaid issue. In my considered view, that truly reflects position as laid down by the Apex Court in Abdul Hamid Shamsi v. Abdul Majid case (supra) and Commercial Aviation & Travel v. Vimla Pannalal case (supra). There can be no doubt about the proposition that insofar as the valuation for purposes of Court fees is concerned in a case for rendition of accounts under Section 7(iv) of the Court Fees Act, it has been left to the plaintiff to affix valuation. At the same stage, it has been held that this valuation cannot be arbitrarily. In the present case, the plaintiff himself has valued the turn over into thousands of crores and claims damages for infringement of the trade mark of the plaintiff and passing of. These damages have not been quantified but accounts have been claimed from the defendants for allegedly using the trade marks improperly and making profits to the detriment of the plaintiff. With such reputation world-wide and the grievance of the plaintiff, it can hardly be stated that the amount which would be found due on rendition of accounts can be said a meagre amount as alleged of Rs. 5,00,050 for purposes of Court fees. The most material fact is that for purposes of suit valuation, the plaintiff in para 42 himself has stated that it is expected that at the time of rendition of accounts the plaintiff shall be entitled to an amount in excess of Rs. 50,00,000. This is not only a hope but is based on the turnover of the plaintiff running into thousands of crores. Thus finding in para 24 of the judgment in Commercial Aviation & Travel v. Vimla Pannalal case (supra) would of little assistance to the plaintiff.

13. I am of the considered view that the valuation for purposes of Court fee made by the plaintiff is clearly arbitrary and the Court has reasonable material to come to the conclusion, especially in view of the averment of the plaintiff himself based on his own sales figures, that amount in excess of Rs. 50,00,000 would be due and payable the plaintiff on rendition of accounts, if the plaintiff succeeds in the suit. Plaintiff is thus required to pay Court fee on the amount of Rs. 50,00,050.

14. In view of the aforesaid, plaint is liable to be rejected under Order 7 Rule 11 of Code. However keeping in mind the provisions of Sub-rule (b) of Rule 11 of Order 7 of the Code, the plaintiff is granted fifteen days time to make up the deficiency of Court fees.

15. List for directions on 7.11.2005. Ordered accordingly.