Delhi High Court

Merck Kgaa & Anr. vs Ethypharm Ll Pvt. Ltd. on 14 September, 2010

Author: V.K.Shali

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CS(OS) NO.1204/2008


                                       Date of Decision : 14.9.2010

MERCK KGAA & ANR.                             ......     Plaintiffs
                            Through:    Ms.    Malavika    Rajotia,
                                        Advocate


                              Versus


ETHYPHARM LL PVT. LTD.                  ......          Defendants
                     Through:           Ms.Shwetasree Majumdar
                                        Advocate.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI


1.     Whether Reporters of local papers may be
       allowed to see the judgment?                     YES
2.     To be referred to the Reporter or not ?           YES
3.     Whether the judgment should be reported
       in the Digest ?                                   YES

V.K. SHALI, J. (Oral)

IA 13220/2008 (u/O 7 Rule 11 CPC), IA 805/2009 & IA 11897/2010 (u/O 6 Rule 17 CPC (seeking amendment in the plaint to bring about the latest address of the plaintiff company in Delhi)

1. This order shall dispose of the three applications bearing

Nos.13220/2008, 805/2009 & 11897/2010.

2. Briefly stated that facts of the case are that the plaintiff had

filed the present suit against the defendant for infringement

of trademark, passing off and damages in respect of

pharmaceutical preparation sold by them under the trade

name of LODOZ. It was alleged that the defendant was

selling the pharmaceutical preparations under the trade

name of LODIL which was infringing the trade mark of the

plaintiff. The defendant was allegedly also passing off its

product as that of the plaintiff.

3. The defendant after filing of the written statement, filed an

application under Order 7 Rule 11 read with Section 151 CPC

on 22.10.2008, wherein it was alleged that the plaint is liable

to be rejected. The grounds for rejection of the plaint was

that the suit is barred by law. It was the case of the

defendant that this Court does not have the territorial

jurisdiction to try the suit. It was alleged that the present

suit is a composite suit for infringement of trade mark and

passing off filed by the plaintiff as stated by them in para 24

of the plaint.

4. The suit has been filed in Delhi by invoking Section 134(2) of

the Trade Marks Act, 1999. It was alleged that so far as

invocation of Section 134(2) of the Trade Marks Act is

concerned, the plaintiff had stated that its place of business

is at A-2/202, Printers Apartments, Sector-13, Rohini, Delhi-

110085, which was stated to be the Branch office of the

plaintiff. It was stated that as a matter of fact, this was the

residential address of one Mr.Bindra who was working for the

plaintiff company. It was alleged that the defendant has made

independent investigation and filed an affidavit of the

investigator that A-2/202, Printers Apartments, Sector-13,

Rohini, Delhi-110085 is a residential address of one

Mr.Bindra and not the branch office of the plaintiff.

Photographs of the flat in question were also placed on record

to show that it could not have been the business address of

the plaintiff company.

5. Extending this objection further, it was the case of the

defendant that so far as the passing off action is concerned,

Section 20 CPC confers jurisdiction on two Courts, one where

the defendant resides or works for gain or where the cause of

action accrues. It was the case of the defendant that no part

of the cause of action has accrued in Delhi and the defendant

is neither having residence nor business in Delhi. It is

alleged that the defendant is doing business at various places

other than the Delhi and therefore, this Court does not have

the jurisdiction. It was urged by the learned counsel that so

far as the question of concealment of facts or a party being a

prior user or not, would not be a ground for rejection of the

plaint, though it may be relevant for purpose of grant of

interim injunction or at the time of final disposal of the

matter.

6. In addition to this, in the application under Order 7 Rule 11

CPC various other points regarding suppression and

concealment of facts, as also no prima facie case is being

made out against the defendant being the prior user, were

also averred but they were not pressed and thereof are not

dealt with. Even otherwise, the entire thrust of the learned

counsel for the defendant was on the rejection of the plaint on

the ground of cause of action clause pertaining to

infringement and passing off.

7. The plaintiff had filed its reply and taken the plea that the

concerned official Mr.Bindra who was working earlier as a

consultant of the plaintiff company had actually ceased to be

consultant and was employed as the Manager of the plaintiff

company. But on account of inadvertent typographical error,

the residential address of Mr.Bindra who was living at A-

2/202, Printers Apartments, Sector-13, Rohini, Delhi-110085

typed as the place of business of the plaintiff company while

as by the time, the petition was filed, the plaintiff had already

shifted its business to A-35, Jhilmil Industrial Area, Delhi -

95. Accordingly, the plaintiff had been constrained to file an

application bearing IA No.805/2009, wherein it was stated

that the address of the plaintiff may be permitted to be

corrected as A-35, Jhilmil Industrial Area, Delhi -95.

Photographs in this regard were also placed on record by the

plaintiff.

8. Applications under order 7 Rule 11 CPC as well as under

order 6 Rule 17 CPC regarding change of address remained

pending for almost two years and in the meantime, when the

applications were taken up for hearing, another application

bearing IA No.11897/2010 was filed by the plaintiff after

serving an advance copy to the defendant. No reply to this

application has also been filed. In the latest application,

under Order 6 Rule 17 read with Section 151 CPC, the

plaintiff no.2 had stated that it has changed its place of

business to A-62, Naraina Industrial Area, Phase-I, Delhi to

L-2, J.R. Complex, Gate No.4, Village Mandoli, Delhi-93. A

notarized copy of the lease deed had also been placed on

record. Thus it was contended by the counsel for the plaintiff

that the plea of the defendant that the suit is liable to be

rejected on the ground of lack of cause of action or being

barred by law, as it does not have any place of business in

Delhi as required by Section 134 (2) is not sustainable

anymore in law.

9. I have heard the learned counsel for the parties on the

applications and perused the record.

10. The learned counsel for the defendant has very vehemently

contended that so far as the present plaint is concerned, it is

liable to be rejected on the ground that the plaint itself

originally showed the place of business of the plaintiff no.2 as

A-2/202, Printers Apartments, Sector-13, Rohini, Delhi-

110085, which was in fact the residential address of one

Mr.Bindra. The defendant has placed reliance on an affidavit

filed by it, after investigations as well as on the photographs.

Another subsidiary argument to this, which has been urged,

by the learned counsel for the defendant is that the relief of

infringement and passing off has been clubbed together while

as for the purpose of passing off the jurisdiction of a Court is

to be seen with reference to Section 20 of CPC. It is urged

that none of the conditions of Section 20 CPC is satisfied in

the instance case.

11. The learned counsel for the plaintiff has contested the

submission of the defendant regarding rejection of the plaint

on this score. It has been urged by the learned counsel for

the plaintiff that so far as the address of Mr.Bindra is

concerned, he was earlier working as a Consultant and the

address of the plaintiff no.2 was given as the address

wherefrom Mr. Bindra was functioning and in any case this

non-issue, on account of fact that the plaintiff has filed two

successive applications, intimating change of address of

plaintiff no.2 and therefore, the case being at the threshold,

the Court, in spite of going into super technicalities and

rejecting the plaint, may permit the plaintiff to carry out

necessary amendments in the plaint regarding the address of

the plaintiff so as to decide the question of infringement of

passing off, as the case may be, on merits.

12. I have carefully considered the submission of the respective

side.

13. There is no dispute about the fact that the law empowers the

Court to reject the plaint under Order 7 Rule 11 CPC on

various grounds one of which is lack of cause of action under

clause 'a' and the suit being barred by any law under clause

'd'.

14. The entire thrust of the learned counsel for the defendant in

the instant case is that the address which is actually the

address of one of its Consultant Mr.Bindra and this fact has

been got verified through an independent investigator and

photograph of the apartment has also been attached. This is

admittedly not the place of business of the plaintiff under

Section 134 (2) and hence the suit is barred by law.

15. I am afraid that this is not the correct procedure while

considering the request of the defendant to reject the plaint of

the plaintiff. The law regarding rejection of plaint is that

while doing so, what the Court has to look is only the plaint

and the documents and not the averments made in the

written statement or the documents which have been filed by

the defendant. The defendant in the instant case is placing

heavy reliance on the affidavit of its investigator and the

photograph and alleged that the averments made by the

plaintiff in the plaint giving the place of its business is not

correct. That would be literally going into the question of

truthfulness and falsity of the place of business as averred in

the plaint. Once this is done, it will be going into the arena of

proof which cannot be done while considering the application

under Order 7 Rule 11 CPC. Order 7 Rule 11 CPC does not

envisage a kind of mini trial. The provision of Order 7 Rule

11 CPC has to be considered in its proper perspective by only

referring to the averments made in the plaint and the

document. If done so, I feel that the submission of the

learned counsel for the defendant must fail.

16. The second submission which has been made by the learned

counsel for the defendant is that the plaintiff has claimed the

relief of infringement and passing off in the same suit which

cannot be permitted to be done in view of various

pronouncements of our own High Court and the Apex Court

in Dabur India Ltd. vs. K.R. Industries [(2008) 10 SCC

595]. This legal position although is not disputed but so far

as the question of clubbing of merely passing off the relief

and infringement is concerned, there cannot be a partial

rejection of the plaint. At best as and when the suit is put to

trial, the plaintiff may succeed in getting one relief or even if

issue with regard to clubbing of these two reliefs is framed,

the suit may be dismissed on account of clubbing of both the

reliefs together if the same is not found to be in order. The

plaintiff has in the cause of action clause curiously has

omitted to make any averment with regard to the relief of

passing off. Therefore, at best this question can be left open

to be decided only after the parties have adduced their

respective evidence after framing of issues. Now the question

which arises for consideration is as to whether the application

of the plaintiff for brining on record changed address of the

plaintiff's business can be brought on record or not. Both

these applications have been opposed by the learned counsel

for the defendant. It has been urged by the learned counsel

for the defendant that these two applications have been filed

only to cover up the lapse which the plaintiff had committed

originally by giving incorrect information.

17. I have considered this submission. The Apex Court in case

titled Sangram Singh vs. Election Tribunal

[AIR1955SC425] has clearly laid down that law procedure is

to advance the justice and not to be hyper technical so as to

trip a party. The exact observation of the Apex Court is as

under:-

"A code of procedure is procedure, something designed to facilitate justice and further its ends : not a Penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it."

18. Keeping in view those observations, I feel that the Court

should not adopt a hyper technical attitude when the case is

still at the threshold by depriving the plaintiff to make

amendment in the address of the plaintiff's place of business.

19. I accordingly, am inclined to allow both these applications

seeking amendment in the plaint with regard to the place of

business of the plaintiff to be carried out. Let an amended

memo of parties be filed within four weeks with an advance

copy to the defendant who may, if so desire, file the written

statement to the same and so far as IA No.13220/2008

under Order 7 Rule 11 is concerned the same is rejected.

CS(OS) No.1204/2008