Delhi High Court
M/S Shri Krishan Industries vs Kimti Lal Sharma & Anr. on 11 February, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: January 29, 2008
Date of Order: February 11, 2009
+ CS(OS) 152/2007 & IA No.8760/2007
%
11.02.2009
M/s Shri Krishan Industries ...Plaintiff
Through: Mr. Sanjeev Singh, Advocate
Versus
Kimti Lal Sharma & Another ...Defendants
Through: Mr. Manav Kumar with Mr. Sushant Singh, Advocates
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the
judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. This suit has been filed by the plaintiff under Sections 134 and
135 read with Section 27(2) of the Trademark Act and under Section
51 of the Copyright Act praying inter alia that the defendants/its
directors/agents/partners be restrained from infringing, directly or
indirectly, the trademark of the plaintiff namely SKI or SKI LABLE for
their goods and they should also be restrained from using any other
trademark identical or deceptively similar to that of the plaintiff's
trademark and from passing off their goods as those of the plaintiff.
The other prayer made by the plaintiff is that the defendant be ordered
to deliver up all goods bearing similar or deceptively similar trademark
as that of the plaintiff of packing materials, cartons, broachers, stickers
etc having trademark similar or deceptively similar to that of the
CS (OS) 152/07 M/s Shri Krishan Industries vs. Kimti Lal Sharma & Anr Page 1 Of 4
plaintiff. It is also prayed that the defendant be directed to render the
accounts of its trade activities and should be restrained from disposing
of or dealing the assets as its own manufacturing units and premises
viz 149, Amar Garden, Preet Nagar, Jalandhar - 144 004 or other
assets not known to the plaintiff. Plaintiff has also claimed damages of
Rs.20,05,000/-.
2. The title of the plaint shows that the plaintiff was located at
Phagwara in Punjab and the defendant was located in Jalandhar in
Punjab. The jurisdiction of this Court has been invoked by the plaintiff
on the ground that the defendant was selling and marketing its goods
in Delhi and soliciting trade and business from Delhi and other parts of
the country and the defendant has filed the trademark application in
the office of Registrar of Trade Mark, Delhi and defendant has obtained
registration of its trademark on all India basis including Delhi. It is also
stated that the plaintiff was selling its goods in Delhi under the
impugned trademark and has goodwill and reputation about this
trademark in Delhi which is being tarnished by the defendants.
3. Since the plaintiff is not residing or working for gain in Delhi
neither the defendant was residing or working for gain in Delhi, the
provisions of Section 134(2) of the Trademark Act or under Section
62(2) of the Copyright Act or Section 20(a), (b) CPC could not be
pressed into service by plaintiff for invoking jurisdiction of this Court.
The only thing to be seen is whether territorial jurisdiction of this Court
can be invoked on the ground that the goods of the plaintiff or
defendants were being sold in Delhi. The plaintiff has not given the
CS (OS) 152/07 M/s Shri Krishan Industries vs. Kimti Lal Sharma & Anr Page 2 Of 4
name of any shop or place in Delhi where the goods of the defendants
were being sold and the trademark of the plaintiff was being infringed.
Except making vague and bald averments that the goods of the
defendants were being sold in Delhi, without giving any particular in
support of its averments and without placing on record any bill of
purchasing goods of defendants in Delhi, the territorial jurisdiction of
this Court has been invoked.
4. The plaintiff who is a resident of Phagwara, Punjab could have
filed this suit in Punjab i.e. Jalandhar where the defendants are
carrying on their business. Invocation of jurisdiction of this Court on the
basis of vague allegations that the goods of defendants were being
sold throughout the country including Delhi makes no sense. No cause
of action can be said to have been arisen in Delhi. Such bald
allegations of sale can be made against any person without any
foundation and plaintiff even during trial can always escape giving
proof of such averments on the ground that he has not stated in the
plaint that the sale was being made at some shop or through bills. The
Courts cannot be used as a tool to put a heavy burden of litigation at a
far off place on the defendant so that the defendant is even unable to
defend the suit.
5. In this case, it is admitted by the plaintiff that the defendant was
a registered owner of the trademark being used by the defendant. No
case for infringement of trademark is made out against the
defendants, in view of provisions of Section 28(3) and 29 of the
Trademark Act.
CS (OS) 152/07 M/s Shri Krishan Industries vs. Kimti Lal Sharma & Anr Page 3 Of 4
6. Thus the claim of the plaintiff against the defendants can be at
the most of passing off and in case of passing off, the law is now well
settled in view of the Supreme Court's judgment in Dodha House v. SK
Maingi, (2006) 9 SCC 41 wherein the Supreme Court laid down that it
was possible that the goods manufactured by the plaintiff were
available in the markets in Delhi or they are sold in Delhi, but that by
itself would not mean that the plaintiff carries on any business in Delhi.
7. In view of above facts and the settled legal position, I consider
that this Court has no territorial jurisdiction to entertain the instant suit
and the plaint is liable to be returned to the plaintiff to be filed at the
Court of appropriate territorial jurisdiction. It is ordered accordingly.
February 11 , 2009 SHIV NARAYAN DHINGRA J.
rd
CS (OS) 152/07 M/s Shri Krishan Industries vs. Kimti Lal Sharma & Anr Page 4 Of 4
