Delhi High Court
Allergan Inc. And Anr. vs Intas Pharmaceuticals on 28 April, 2006
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
IA. No. 976/2006 (O.7 R.11 CPC)
1. Defendant has filed this application seeking rejection of the plaint on the ground of territorial jurisdiction, in view of the Judgment of the Apex Court in Dhodha House v. S.K. Maingi 2005 (10) Scale 267.
2. The aforesaid Judgment of the Apex Court has been considered by two learned Judges of this Court. The first Judgment is in IA.NO.6965/2005 in CS(OS)No.311/2005 (Pfizer Products, Inc. v. Rajesh Chopra and Ors.) decided on 8.2.2006 by Hon'ble Mr.Justice Badar Durrez Ahmed and the second Judgment is in IA.No.258/2006 in CS(OS)No.1359/2004 (LG Corporation and Anr. v. Intermarket Electroplasters (P) Ltd. and Anr.) decided on 13.2.2006 by Hon'ble Mr.Justice A.K.Sikri. In both the Judgments a view has been taken that in view of the provisions of Section 20(c) of the Code of Civil Procedure, 1908 (hereinafter referred 'the said Code') in case part of the cause of action arose within the territorial jurisdiction of this Court in the form of sale of the product of the defendant or there is even threat of sale, this Court would have the territorial jurisdiction.
3. Learned counsel for the defendants attempted to persuade this Court to take a different view from that taken by the two other learned Judges of this Court. Learned counsel states that Sub-section 2 of Section 134 of the Trade Mark Act, 1999 has expanded the territorial jurisdiction of a Court and though the same refers to the institution of the suit and would thus apply to a plaintiff, the same principle must also apply to the defendant. Section 134 reads:
134. Suit for infringement, etc., to be instituted before District Court.- (1) No suit -
(a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.
(2) For the purpose of clauses (a) and (b) of Sub-section (1), a 'District Court having jurisdiction' shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, whether there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain.'
4. I am unable to appreciate the plea for the reasons that the legislature in its wisdom having extended the territorial jurisdiction of the Court in a particular manner, it is that particular manner alone where the Court would have expanded the territorial jurisdiction.
5. Learned counsel also sought to contend that the grievance of the plaintiff arises from the infringing mark which is prior to sale. This plea again I fail to appreciate for the reasons that it is not merely a mental conceptualization of a mark which gives the cause of action but the adoption for sale by a party which would give a cause of action. I am in full agreement with the views expressed by the two Hon'ble Judges and I am inclined to follow the same.
6. In view of aforesaid, the application is dismissed.
IA.No.3991/2006 (Under Order 6 Rrule 11 CPC)
7. The plaintiff has filed the application seeking amendment of the plaint whereby the plaintiff seeks to amend the valuation of the suit for the purpose of seeking account of profit.
8. It is for the plaintiff to value the said amount. Thus the application is allowed. CS(OS)NO.1445/2003
9. The amended plaint is taken on record. The written statement, if any, to the amended plaint be filed within 30 days.
10. Parties are granted last opportunity to file their original documents within four weeks.
11. List before the Joint Register for admission/denial of the documents on 7.7.2006.
12. List before the Court for framing of issues on 21.7.2006
IA. No. 2439/2005 (Under Order 39 Rs. 1 and 2 CPC)
13. List on 21.7.2006.
