Dashmesh Mechanical Works vs Hari Singh & Anr.
2009 Latest Caselaw 5366 Del

*             HIGH COURT OF DELHI : NEW DELHI

+          I.A. No. 9942/2009 in CS (OS) No. 834/2009

Dashmesh Mechanical Works                                       ...Plaintiff
                  Through           : Mr. Shailen Bhatia with Ms.
                                      Zeba Tarannum Khan, Mr.
                                      Amit Jain and Mr. Vivek
                                      Aggarwal, Advs.

                                    Versus

Hari Singh & Anr.                                              ...Defendants
                          Through   : Mr. M.K. Miglani with
                                      Mr. Gaurav Miglani, Advs.

Reserved on : December 7, 2009
Decided on : December 23, 2009

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        No

2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported
   in the Digest?                                         Yes

MANMOHAN SINGH, J.

1. The plaintiff has filed the suit under Section 106 of the

Patents Act, 1970 for declaration and permanent injunction restraining

the defendants from issuing illegal threats and for damages etc.

2. Along with the suit, the plaintiff has also filed an application

for interim injunction.

3. The defendants filed their written statement and reply to the

interim application. Along with the written statement, they have also

filed an application under Order VII Rule 10 read with Section 151 of

the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC)for

return of the plaint for lack of territorial jurisdiction.

4. According to the plaintiff, defendant No.1 Sh. Hari Singh is

a resident of Nabha, District Patiala, Punjab and defendant No.2 is a

private limited company which is also situated in Nabha.

5. The plaintiff is a partnership firm carrying on its business at

Rajkot Road, Malerkotla, Punjab and is also carrying on business and

work for gain in Punjab.

6. The Plaintiff has invoked the territorial jurisdiction of this

court as set out in Para 29 of the plaint which reads as under:-

"That this Hon‟ble court has jurisdiction to try the suit as the threat in the form of notice has been issued from the defendant‟s counsel in Delhi. The goods of the plaintiff are sold in Delhi and threats may be made against such sales by the defendants in Delhi. The plaintiff apprehends that the defendants would disturb the business of the plaintiff in Delhi by issuing such illegal threats to the plaintiff."

7. The plaintiff has made similar statements in Paras 12, 14, 20,

22 and 29 of the plaint to the effect that the defendants are issuing illegal

threats as regards Patent No.213823 and the whole purpose of issuing

such notices which are not tenable in law is to harass and embarrass the

plaintiff and the threats issued by the defendants are highly unjustifiable

and illegal. The plaintiff has suffered irreparable injury and loss by

issuance of such illegal threats by the defendants and this court may

issue a declaration to the effect that the threats issued by the defendants

in respect of Patent No.213823 are unjustifiable.

8. It was contended by the counsel for the defendants that this

court does not have the territorial jurisdiction to entertain and try the

present suit and that the admitted position of the facts between the

parties is that the defendant is a firm which is carrying on its business at

Rajkot Road, Maler Kotla, Punjab and the defendant No.1 is the Director

of Defendant No.2 which is situated in Nabha, Punjab.

9. It was also argued that the plaintiff has failed to produce any

evidence to show that the defendants were carrying on their business

partly or otherwise within the territory of this court, nor has the same

been contended by the plaintiff. The legal notice issued by the

defendants on the basis of which the suit has been instituted by the

plaintiff was also received by the plaintiff at a place outside the

jurisdiction of this court.

10. Lastly, it has been argued by the counsel that the threat in the

form of notice had been issued from the defendant‟s counsel in Delhi

and on the said excuse the suit cannot be filed before this court as the

Patents Act, 1970 does not provide a forum to the plaintiff to sue where

its goods are being sold unlike Section 134(2) of the Trade Mark Act,

1999 and Section 62(2) of the Copyright Act, 1957. The jurisdiction in

the absence of the same is to be conferred within the scheme of Section

20 of the Code of Civil Procedure.

11. The application is opposed by the learned counsel for the

plaintiff who has stated that the plaintiff carries on extensive business

through its retail outlets within the jurisdiction of this court as alleged in

Para 29 of the plaint and that the cause of action has arisen within the

jurisdiction of this court for the reason that the threats given by the

defendants to the plaintiff are capable of prejudicing the plaintiff‟s

business within the jurisdiction of this court and the plaintiff also

apprehends that the defendants would disturb the business of the plaintiff

by issuing such illegal threats to the plaintiff.

12. The learned counsel for the plaintiff has not denied the fact

that both the parties i.e. the plaintiff and defendants are residing and

carrying on business outside the jurisdiction of this court and has

submitted that the plaintiff has invoked the jurisdiction of this court

only on the basis of threat from the defendants in the form of the notice

issued from the defendants‟ counsel, who is based in and works from

Delhi.

13. Section 106 of the Patents Act, 1970 deals with the remedies

available to a person aggrieved by groundless threats of legal

proceedings by bringing a suit against the person who extends threats to

obtain a decree for declaration, injunction, damages etc. Section 106 of

the Patents Act reads as under:-

"106. Power of court to grant relief in cases of groundless threats of infringement proceedings.-(1) Where any person (whether entitled to or interested in a patent or an application for patent or not) threatens any other person by circulars or advertisements or by communications, oral or in writing addressed to that or any other person, with proceedings for infringement of a patent, any person aggrieved thereby may bring a suit against him praying for the following reliefs, that is to say - (a) a declaration to the effect that the threats are unjustifiable.

(b) an injunction against the continuance of the threats; and

(c) unless in such suit the defendant proves that the acts in respect of which the proceedings were threatened constitute or, if done, would constitute, an infringement of a patent or of rights arising from the publication of a complete

specification in respect of a claim of the specification not shown by the plaintiff to be invalid the court may grant to the plaintiff all or any of the reliefs prayed for."

14. Thus, it is submitted by the plaintiff that the plaintiff has

received the threats on receipt of legal notice issued by the defendants

through counsel from Delhi and since the threats extended by the

defendants are at a place where the plaintiff is carrying on its business,

therefore, the suit filed by the plaintiff in an action to restrain groundless

threats of legal proceedings is maintainable.

15. I have heard learned counsel for the parties. In order to

decide as to whether any part of cause of action has arisen within the

jurisdiction of this court it is not in dispute and even the parties were at

ad idem while considering the application under Order 7 Rule 10 of CPC

and at this stage the court cannot go into the defense of the defendants

contained in the written statement or the documents filed by them as per

well settled law only the plaint alone is to be seen. In the case reported

in Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune

Express,(2006) 3 SCC 100 it has been held as under:-

"12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to

be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants."

16. In the case of Om Prakash Srivastava vs. Union of India &

Ors, reported in 131(2006) DLT 557 (SC), the Supreme Court has laid

down the principles to determine as to what constitutes the cause of

action as under:-

"9. By "cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. (See Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors., (1994)6SCC322 ).

In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) "cause of action" means every fact, which it is necessary to establish to support a right to obtain a judgment. (See Sadanandan Bhadran v. Madhavan Sunil Kumar, 1998CriLJ4066 ).

10. It is settled law that "cause of action" consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise. (See South East Asia Shipping Co. Ltd. v. Nav Bharat Enterprises Pvt. Ltd. and Ors.,[1996]3SCR405 ).

11. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of

action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary, to prove each fact. comprises in "cause of action". (See Rajasthan High Court Advocates' Association v. Union of India and Ors., 2001 (2) SCC 294.)

12. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh, [1977]2SCR250 ).

13. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person. (See Black's Law Dictionary). In. Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra and Ors., AIR2000SC2966)."

17. In another matter reported in Union of India & Others vs.

Advani Exports Ltd & Anr. reported in AIR 2002 SC 126 Para 10 the

Apex court has held as under:-

"10. We are unable to accept this finding of the High Court. The view of the High Court that this Court in the case of Oswal Woollen (supra) had held that the existence of the registered office of a Company would ipso facto give a cause of action to the High Court within whose jurisdiction the registered office of such Company is situated, is not correct. As a matter of fact in the case of Oswal Woollen (supra), the question of territorial jurisdiction in the sense with which we are concerned now, did not arise at all. In that case, the observations of the Court were as follows:

"Having regard to the fact that the registered office of the Company is at Ludhiana and the principal respondents against whom the primary relief is sought are at New Delhi, one would have expected the writ petition to be field either in the High Court of Punjab and Haryana or in the Delhi High Court. The writ petitioners, however, have chosen the Calcutta High Court as the forum perhaps because one of the interlocutory reliefs which is sought is in respect of a consignment of beef tallow which has arrived at the Calcutta Port. We do not desire to probe further into the question whether the writ petition was field by design or accident in the Calcutta High Court when the office of the Company is in the State of Punjab and all the principle respondents are in Delhi."

18. From the above said decisions given by the Supreme Court

while examining the expression „cause of action‟ the court has to see the

factual situation that gives rise to an enforceable claim made by the

plaintiff in the plaint which is to be read collectively to constitute a

bundle of facts that form the basis of institution of the present suit filed

by the plaintiff.

19. In the present case the plaintiff has specifically made a

statement in the plaint that the plaintiff is carrying on business in Delhi

where the threat has been extended by the defendant though counsel,

therefore, it cannot be held that no part of cause of action has arisen in

Delhi within the jurisdiction of this court in the absence of filing of any

evidence.

20. At this stage the court has to believe the version pleaded by

the plaintiff in the plaint that the plaintiff is carrying on its business

within the territorial jurisdiction of this court and that the defendant

would disturb the business of the plaintiff in Delhi and embarrasses the

plaintiff. A statement has also been made in the plaint that the plaintiff

apprehends to receive threats from the defendants within the jurisdiction

of this court.

21. It is settled law that the plaintiff is a dominus lites i.e. master

of or having dominian over the case. He has a right to have his forum of

convenience by approaching the court where part of cause of action

arises. Actually he is the person who has to control all his actions unless

the said forum is opposed to public policy or will be an abuse of the

process of law. The plaintiff has every right to choose the forum best

suited to him. No doubt, the plaintiff during the trial has to prove that the

court has territorial jurisdiction after producing evidence in this regard.

At this stage in the present matter, prima facie it cannot be said that this

court lacks the inherent jurisdiction to entertain the suit. The mere failure

to mention in the paragraph stating the cause of action that the plaintiff

has been threatened in Delhi is not enough to return the plaint because

while deciding the application of the defendants, the whole plaint has to

be taken into consideration.

22. In view of the foregoing discussion, the present application

filed by the defendants under Order VII Rule 10 of the Code of Civil

Procedure for returning of plaint is dismissed. No costs.

List before the Joint Registrar on 19th April, 2010.

MANMOHAN SINGH, J.

DECEMBER 23, 2009