M/S Bhatia Industries & Others vs M/S Pandey Industries & Others
2011 Latest Caselaw 233 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%           Judgment Reserved on: 13th January, 2011
            Judgment Pronounced on: 17th January, 2011.

+ I.A. Nos. 6505/2010 (O.6. R.17 CPC) & 13661/2009
(O. 7. R. 10 & 11 CPC) IN CS(OS) No. 720/2009

M/s Bhatia Industries & Others                   .....Plaintiffs

                             - versus -

M/s Pandey Industries & Others                  .....Defendants

Advocates who appeared in this case:
For the Plaintiff: Ms. Pratibha M. Singh with Mr. Jaspreet
                   Singh Kapur and Ms. Saya Choudhary.
For the Defendant: Mr. Sanjeev Singh with Mr. Amit Jha.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may                    Yes
   be allowed to see the judgment?

2. To be referred to the Reporter or not?                    Yes

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

V.K. JAIN, J

1.          This is a suit for permanent injunction.           The

plaintiff No.1 claims to be the owner of the trademark TIYA

having acquired it by assignment from plaintiff No.2. It is

alleged that the mark TIYA was registered in the name of

plaintiff     No.2   vide   registration   No.299272   on      13th



CS(OS)No.720/2009.                                     Page 1 of 24
 September, 1974. The registration of the trademark in the

name of plaintiff No.1 M/s Tiya Industries was renewed for

some years but the registration discontinued thereafter.

The trademark is stated to have been assigned by plaintiff

No.2 to plaintiff No.1 in the year 1983 and is being used by

plaintiff No.1 since the year 1981 in respect of steel and

rubber parts for the cycle and auto industries mainly of

steel balls, nuts bolts, rings, spoke wires and cycle parts

etc.    The plaintiffs claim to be the exclusive owner of the

trademark TIYA with logo on account of its continuous user

since the year 1974. This is also the case of the plaintiffs

that they are selling their products under a distinctive label

and trade dress, which constitute an original artistic work

within the meaning of Section 2(c) of the Copyright Act,

1957 and the copyright in that work vests in plaintiff No.1.

Defendant No.1 has obtained registration of this trademark

in its favour since 19th July, 2004/28th April, 2006.       The

case of the plaintiffs is that the defendants having

committed acts of infringement and passing of by adopting

the trademark TIYA and using the trade dress, get up,

colour combination and label identical to that of the

plaintiffs.

CS(OS)No.720/2009.                                  Page 2 of 24
 2.          As regards jurisdiction of this Court, para 14 of the

plaint, to the extent it is relevant, reads as under:-

             "14.....The plaintiff came across the goods
             of the defendants towards the end of
             March 2008 TIYA with Logo being
             imitating trademark and the plaintiff
             inquired in the market at its level that the
             defendant had started commercially using
             the trademark only recently and the
             defendants were carrying their activities
             in a clandestine and deceitful manner.
             ...."

            Para 58 of the plaint reads as under:-

             "58. That where the plaint schedule is
             within the jurisdiction of this Hon'ble
             Court."

3.          The defendants have contested the suit and have

taken a preliminary objection that this Court has no

jurisdiction to try the present suit since no cause of action

arose within the jurisdiction of this Court. It is also alleged

that the business activities of the defendants including the

acts of manufacturing and marketing of their goods are

confined/limited to the territories of the State of U.P. and no

components/parts/goods are being supplied outside the

State of U.P. It has also been alleged that at no given point

of time, the defendants have made any business transaction

within the territorial jurisdiction of this Court and they are


CS(OS)No.720/2009.                                          Page 3 of 24
 not passing of their goods and business as that of the

plaintiffs within the jurisdiction of this Court. However, in

para C of the preliminary objections, the defendants have,

inter alia, stated as under:-

             "......      The   defendants     have    been
             marketing     and    selling   its   goods
             throughout India since its inception in the
             year 1995. The Goods/products of the
             Defendants has been always available in
             Different markets of India in different
             parts and defendants are well known
             among big dealers and distributors
             dealing in the said goods/products or
             allied or cognate goods. Accordingly, the
             defendants enjoy goodwill and reputation
             throughout the country...."

4.          I.A. 13661/2009 has been filed by the defendants

under Order VII Rules 10 and 11 of the Code of Civil

Procedure for rejection of the plaint on the ground that this

Court has no territorial jurisdiction to try this suit as no

cause of action arose within the jurisdiction of this Court.

5.          I.A. 6505/2010 has been filed by the plaintiffs for

amendment of the plaint.         The plaintiffs wants to amend

para 58 of the plaint as also the prayer clause in the

following manner:-

Existing Paragraph

             "That where the plaint schedule is
             within the jurisdiction of this Hon'ble

CS(OS)No.720/2009.                                         Page 4 of 24
              Court"

Proposed amendment paragraph No.58

             "That this Hon'ble Court has got the
             territorial jurisdiction to entertain
             and try the present suit the plaintiff
             has invoked the jurisdiction of this
             Hon'ble Court under Section 62(2) of
             the Copyright Act, 1957. Further, the
             defendants     have    their business
             activities within the jurisdiction of
             this Hon'ble Court as they are selling
             the infringing goods within Delhi in
             clandestine manner without issuing
             the cash memo and their Trademark
             Application was filed, prosecuted and
             registered in Delhi claiming the use
             for all over India."

Existing prayer clause

             1. "to grant a permanent decree
                against    the   defendants,     their
                partners/proprietor,    assigns     in
                business, distributors, dealers and
                agents     are    restrained     from
                manufacturing, selling, offering for
                sale,    advertising    directly    or
                indirectly dealing in steel balls or
                any other cycle parts under the
                impugned trademark TIYA or the
                impugned       label/trade       dress
                pertaining thereto or any other
                trademark/lable/trade      dress    as
                may be deceptively similar to the
                trademarks Tiya label of the
                plaintiffs Tiya with or without
                trademark or part thereof."

             2. "To grant a permanent injunction
                that goods of all the description in
                the name of the TIYA with mark

CS(OS)No.720/2009.                                       Page 5 of 24
                  shall be restrained from packaging,
                 manufacturing and confiscating
                 from the Defendant No. 1 and 2
                 along    with     their   associates,
                 dealers, distributor, agent stockiest
                 and retailers in the channel".

 Proposed amended paragraph:-

             1. "to grant a permanent decree
                against    the   defendants,     their
                partners/proprietor,     assigns     in
                business, distributors, dealers and
                agents     are    restrained      from
                manufacturing, selling, offering for
                sale,    advertising    directly     or
                indirectly dealing in steel balls or
                any other cycle parts under the
                impugned trademark TIYA or the
                impugned       label/trade       dress
                pertaining thereto or any other
                trademark/lable/trade      dress     as
                may be deceptively similar to the
                trademarks Tiya label of the
                plaintiffs Tiya with or without
                trademark or part thereof which
                amounting passing off their goods
                as that of the plaintiff"

             2. "to grant a permanent decree
                against    the   defendants,     their
                partners/proprietor,    assigns      in
                business, distributors, dealers and
                agents     are    restrained      from
                manufacturing, selling, offering for
                sale,    advertising    directly     or
                indirectly dealing in steel balls or
                any other cycle parts under the
                impugned label/trade dress/TIYA
                LOGO placed at page 198 of the list
                of    document     or    any     other
                label/trade dress/logo/device which
                may be similar/deceptively similar

CS(OS)No.720/2009.                                        Page 6 of 24
                  to plaintiffs Tiya logo and or
                 amounting       infringement      of
                 Copyright    of      the   plaintiff
                 packaging material"

            The plaintiffs are also seeking to amend the title of

the suit as under:-

             "SUIT FOR PERMANENT INJUNCTION
             RESTRAINING   INFRINGEMENT  OF
             COPYRIGHT, UNFAIR COMPETITION,
             PASSING OFF AND DAMAGES"

6.          Admittedly, a criminal complaint was filed by the

defendants at Varanasi and in para 8 of the complaint, the

defendants, inter alia, alleged as under:-

             "...Due to the complainant's ability of
             maintaining     quality   control,   the
             complainant's goods are demanded in
             large quantity and complainant is known
             country wide."

7.          If para- "C" of the preliminary submissions in the

written statement and the averments made in the criminal

complaint filed by the defendants are read without reference

to other parts of the written statement, they contain an

admission that the defendants have been marketing and

selling their goods throughout India since 1995 and their

goods have always available in various parts of the Country,

which obviously would include Delhi. On the other hand,

the defendants have also alleged in the written statement

CS(OS)No.720/2009.                                      Page 7 of 24
 that all their business activities were confined to State of

U.P. and they were neither manufacturing nor selling any

goods outside the State of U.P.

8.          In view of these seemingly contradictory pleas

taken in the written statement, it is difficult for the Court to

be certain at this stage as to whether the defendants were

actually selling any goods in the jurisdiction of this Court or

not. If they have been selling goods in Delhi and thereby

allegedly passing off their goods as those of the plaintiffs,

the Delhi Court would obviously have jurisdiction to try the

suit since part of cause of action in that case arose within

the territorial jurisdiction of this Court.

9.          In my view, the averments made in para 14 of the

plaint when read with para 58 thereof, can also be taken to

mean that the plaintiffs had come across the goods of

defendants in Delhi and, therefore, the defendants were

carrying their commercial activities in Delhi as well.               It

would be pertinent to note here that though in para 14 of

the plaint, the plaintiffs do not specifically claim that they

had come across the goods of the defendants in Delhi and

that the defendants were carrying their activities in Delhi,

they also do not say that the goods of the plaintiffs were

CS(OS)No.720/2009.                                    Page 8 of 24
 found by them outside Delhi.       The plaintiffs are based in

Delhi and do not claim to have any office in the State of U.P.

In para 58, the plaintiffs alleged that the plaint schedule is

within the jurisdiction of this Court. When read in light of

para 58, the averments made in para 14 of the plaint can

also mean that it was in the jurisdiction of this Court that

the goods of the defendants were found by the plaintiffs.

The plaintiffs can, therefore, explain that the averments

made by them in para 14 of the plaint were intended to refer

the sale of the products of the defendants in Delhi.             Of

course, no definite view in this regard can be taken at this

stage.

10.         Order XIV Rule 2 of the Code of Civil Procedure

provides that notwithstanding that a case may be disposed

of on a preliminary issue, the Court shall, subject to the

provisions of sub-rule (2), pronounce judgment on all

issues.     It further provides that where issues both of law

and fact arise in the same suit, and the Court is of opinion

that the case or any part thereof may be disposed of on an

issue of law only, it may try that issue first if that issue

relates to (a) the jurisdiction of the Court, or (b) a bar to the

suit created by any law for the time being in force.

CS(OS)No.720/2009.                                     Page 9 of 24
             Though issues have not been framed in this case

so far, applying the principles contained in sub-rule 2 of

Rule 2 of Order XIV of the Code of Civil Procedure, it can

safely be said that when the issue relating to territorial

jurisdiction of the Court is a mixed question of fact and law

and,     therefore,   cannot   be   decided   without   recording

evidence, the Court will not be justified in taking a final view

on the issue of jurisdiction without giving opportunity to the

parties to lead evidence in this regard.

11.         Order VII Rule 11 of the Code of Civil Procedure,

which provides for rejection of plaint, to the extent it is

relevant, empower the Court to reject the plaint where it

does not disclose a cause of action or where the suit

appears from the statement in the plaint to be barred by

any law.       The cause of action comprises bundles of facts,

which the plaintiff has to prove in order to obtain the relief

claimed by him.       If the plaint discloses facts which would

entitle to the plaintiff to the relief sought by him but it is

found that the cause of action did not arise in the territorial

jurisdiction of this Court, it would not be a case of the plaint

not disclosing a cause of action and, therefore would not

entail its rejection under Order VII Rule 11(a) of the Code of

CS(OS)No.720/2009.                                      Page 10 of 24
 Civil Procedure. In such a case, the Court, in view of the

provisions contained in Order VII Rule 10 of the Code of

Civil Procedure, is required to return the plaint to the

plaintiff to present it to the Court in which the suit should

have been instituted by him. Rule 10A of Order VII provides

that in such a case, the Court shall, before returning the

plaint, intimate its decision to the plaintiff, who may then

make an application to the Court specifying the Court in

which he proposed to present the plaint after its return,

praying that the Court may fix a date for appearance of the

parties in the Court where he proposes to present the plaint

and requesting that the notice of the date so fixed may be

given to the parties to the suit. Sub-rule 3 of Rule 10A of

Order VII of the Code of Civil Procedure specifically empower

the Court to pass such an order despite the fact that it has

no jurisdiction to try the suit. Therefore, in my view clause

(a) of Rule 11 of Order VII of the Code of Civil Procedure has

no application where plaint does disclose a cause of action

but not in the territorial jurisdiction of the Court where the

suit has been filed. As far as clause (d) of Rule 11 of Order

VII of the Code of Civil Procedure is concerned, that would

apply only where the averments made in the plaint show

CS(OS)No.720/2009.                                  Page 11 of 24
 that the plaint is barred by any law.         This clause has no

application in a case where the Court has no territorial

jurisdiction to try the suit though the suit is not barred by

any law.       Clause (d) would apply only in a case where it

appears on the face of the plaint that the suit is barred

under any law. This clause may apply when the jurisdiction

of civil Court is altogether excluded under a provision of law

but has no application where it is only territorial jurisdiction

of the Court, which is alleged to be absent.        Moreover, in

order to ascertain whether the suit is barred by any law or

not, it is only the averments made in the plaint, which have

to be seen.          In the case before this Court, the averments

made in the plaint cannot be interpreted to mean that Delhi

Court has no territorial jurisdiction to try this suit.

Therefore, clause (d) of Rule 11 of Order VII of the Code of

Civil Procedure does not apply to this case.

12.         It was contended by learned counsel for the

defendants that while deciding an application under Order

VII Rule 11 of the Code of Civil Procedure, it is only the

averments made in the plaint which can be taken into

consideration and, therefore, it is not permissible to look

into the averments made in the written statement or the

CS(OS)No.720/2009.                                      Page 12 of 24
 documents of the defendants to make out territorial

jurisdiction on the Court.

13.         In my view, the contention is misconceived in law.

If the defendant claims that the plaintiff had no cause of

action to file the suit and relies on the averments made and

documents filed by him for this purpose, it is open to the

plaintiffs to say that it is only his pleadings and documents

which can be looked into by the Court to decide whether the

plaint discloses any cause of action or not and the pleadings

and documents of the defendants cannot be looked into for

this purpose.        This plea, however, is open only to the

plaintiff and not to the defendant. Nothing in law precludes

the plaintiff from relying upon the admission made in the

pleadings and/or documents of the defendant to show that

the Court has territorial jurisdiction to try the suit filed by

him.     In fact, if the defendant himself pleads facts which

constitute territorial jurisdiction of the Court, it is not open

to him to claim that the Court has no territorial jurisdiction

or to say that no part of cause of action arose within the

jurisdiction of the Court and, therefore, the Court has no

territorial jurisdiction to try the suit.

14.         The learned    counsel for      the   defendants has

CS(OS)No.720/2009.                                      Page 13 of 24
 referred to the decision of the Supreme Court in Saleem

Bhai and Others v. State of Maharashtra and Others,

(2003) 1 SCC 557. In the case before the Supreme Court,

the appellant, who was defendant in the suit, filed an

application under Order VII Rule 11 of the Code of Civil

Procedure for rejection under clause (a) and (d) of Rule 11 of

Order VII of Code of Civil Procedure. The respondent, who

was the plaintiff in the suit, filed an application under Order

VIII Rule 10 of the Code of Civil Procedure to pronounce

judgment on the ground that the appellant had not filed the

written statement. An application was also filed by the

appellant/defendant requesting the Court to decide the

application under Order VII Rule 11 CPC first. The learned

trial Judge dismissed the application under Order 8 Rule 10

of the Code of Civil Procedure filed by the

respondent/plaintiff as also the application filed under

Section 151 CPC. As regards the application of the

appellant/defendant, he directed the defendant to file his

written statement. Aggrieved from the order, the appellant

approached the High Court, which confirmed the order of

the learned trial Judge. Setting aside the decision of the

High Court, it was held by the Supreme Court that the

power under Order VII Rule 11 of the Code of Civil

Procedure can be exercised by the trial Court at any stage of

the suit including before registering the plaint or after

issuing summons to the defendant on any time before

conclusion of the trial. It was, in this context, that the

Court was of the view that for the purpose of deciding an

application under Clause (1) and (d) of Rule 11 of Order VII,

the averments made in the plaint are germane and the pleas

taken by the defendant in the written would be wholly

irrelevant at that stage and, therefore, the direction to file

written statement before deciding the application under

Order VII Rule 11 of the Code of Civil Procedure was a

procedural irregularity. However, in the case before this

Court, no specific direction was given by the Court to the

defendants to file the written statement before they filed an

application under Order VII Rule 11 of the Code of Civil

Procedure. On 2nd September, 2009 when the defendants

for the first time had put appearance before the Court, their

counsel stated that he would file the written statement

within four weeks. The written statement was accordingly

signed by the defendants on 6th October, 2009, as is evident

from the photocopy of the written statement placed on

record by the plaintiffs and affidavit of Mr. Shashank

Pandey, one of the partners of the defendant firm sworn on

6th October, 2009 was also enclosed to it. Copy of the

written statement was supplied to learned counsel for the

plaintiffs. Of course, the written statement in original is still

not before the Court. Replication to the written statement

was filed by the plaintiffs on 30th November, 2009. The

application under Order VII Rules 10 and 11 of the Code of

Civil Procedure was filed by the defendants on 6th October,

2009. This application is also supported by the affidavit of

Mr. Shashank Pandey on 6th October, 2009. It is, thus,

evident that the I.A. No.13661/2009 as also the written

statement were signed and verified on 6th October, 2009 and

the affidavits in support thereof were also sworn on the

same date. Obviously, either the written statement was

returned by the registry on account of some objection or the

defendants deliberately withheld its filing despite supplying

its advance copy to the plaintiffs.

15. The learned counsel for the defendants has after

arguments submitted photocopies of the decisions rendered

in Sopan Sukhdeo Sable and Others v. Assistant

Charity Commissioner, (2004) 3 SCC 137, K. Narayanan

& another v. S. Murali, 2008 (3) R.A.J. 631 (SC), Archie

Comic Publications, Inc. v. Purple Creations Pvt. Ltd. &

others, 2008 (37) PTC 279 (Del.), A.V.R. Engineers v.

Sharma Moulding Works and others, 2008(38) PTC 243

(Del.) and Dhodha House & Patel Field Marshal

Industries v. S.K. Maingi & P.M. Diesel Ltd., 2006 (32)

PTC 1.

16. In the case of Sopan Sukhdeo Sable (supra), the

Supreme Court referred to its earlier decision in the case of

Saleem Bhai (supra), which I have already dealt with in the

preceding paragraph.

17. In the case of K. Narayanan (supra), the Supreme

Court referred to its decision in the case of Dhodha House

(supra) wherein it had concurred with the view taken by a

Division Bench of the Madras High Court to the effect that

mere filing of a trademark application does not constitute a

cause of action to file a suit for passing off. However, in the

case before this Court, there are specific allegations that the

defendants were passing of their goods as those of the

plaintiffs and, as discussed earlier, the averments made in

this regard in the plaint can also be interpreted to mean

that the goods of the defendants were also being sold in

Delhi. Also, as noted earlier, the defendants themselves

have claimed in their written statement that they were

selling goods throughout the country, which obviously,

would include Delhi.

18. In the case of A.V.R. Engineers (supra), this Court

reiterated the otherwise settled proposition of law that the

Court has to see only the averments made in the plaint, to

decide whether the suit discloses a triable cause of action

and whether the Court has jurisdiction in the matter.

However, as noted earlier, the plea that only the averments

made in the plaint can be looked into by the Court while

considering an application under Order VII Rule 11 of the

Code of Civil Procedure is open only to the plaintiff and not

to the defendant. If the defendant makes averments, which

constitute a territorial jurisdiction of this Court, the plaintiff

is very much entitled to rely on those averments and to

claim that the admission made by the defendant in this

regard is sufficient to prove the territorial jurisdiction of the

Court.

19. For the reasons given in the preceding paragraphs,

I find no merit in I.A. No.13661/2009 and the same is

hereby dismissed.

20. Coming to I.A. no.6505/2010, though the settled

proposition of law is that a Court having no territorial

jurisdiction in the matter cannot allow an amendment,

which will have the effect of conferring jurisdiction on the

court, in case the case before this Court, as noted earlier, it

cannot be said at this stage that the Court has no territorial

jurisdiction to try the present suit. As stated earlier, the

averments made in the plaint are also capable of an

interpretation that the defendants were selling their goods

in Delhi and were thereby allegedly passing them off as the

goods of the plaintiffs in the jurisdiction of this Court. This

is besides defendants' own averment alleging sale

throughout the country, which, obviously, would include

Delhi. Therefore, the Court will not be justified in refusing

amendment on the assumption that it has no territorial

jurisdiction to try the present suit. Of course, the Court

also cannot give a definite finding at this stage that it does

have territorial jurisdiction to try the suit. The question,

which then comes up for consideration, is as to whether the

proposed amendment should be allowed or should be

refused at this stage.

21. As observed by the Supreme Court in Jai Jai Ram

Manohar Lal v. National Building Material Supply,

Gurgaon, AIR 1969 SC 1267 the rules of procedure are

intended to be a handmaid to the administration of justice

and amendments cannot be refused merely because of some

mistake, negligence, inadvertence or even infraction of the

rules of procedure by a party. It was further observed that

the Court always gives leave to amend the pleading of a

party, unless it is satisfied that the party applying was

acting mala fide, or that by his blunder, he had caused

injury to his opponent which may not be compensated for

by an order of costs. The Court was of the view that,

however, negligent or careless may have been the first

omission, and, however, late the proposed amendment, it

may be allowed if it can be made without injustice to the

other side.

22. If the proposed amendment is not allowed, there is

likely to be objection by the defendants to the plaintiffs

producing evidence to prove that the defendants were selling

their goods in the territorial jurisdiction of this Court. In

the event of such an objection being upheld, the plaintiffs

would be denied an opportunity to prove such a sale,

thereby resulting in miscarriage of justice. The defendants

on the other hand are not likely to be adversely affected, if

the plaintiffs are allowed to lead such evidence since they

would have opportunity to lead evidence to rebut the

evidence, which may be produced by the plaintiffs in this

regard. I, therefore, feel that the appropriate course of

action in the facts and circumstances of the case would be

to allow the proposed amendments. In fact, the

amendments proposed by the plaintiffs can also be said to

be clarificatory in nature by clarifying that the sales alleged

in para 14 of the plaint were in Delhi and, therefore, Delhi

Court has jurisdiction to try the present suit. It is settled

proposition of law that an amendment, which is of

clarificatory nature needs to be allowed since it causes no

prejudice to either party.

23. In Ajarjeet Singh v. Municipal Corporation of

Delhi, AIR 1992 Delhi 317, the plaintiff alleging to be an

allottee filed a suit for perpetual injunction against the MCD

seeking injunction against dispossession or demolition of

the stall, which he was occupying. He later filed an

application for amendment of plaint to plead that, in fact,

one Amrik Singh was the tenant of the stall in question

under MCD and he made a WILL thereof in favour of the

plaintiff, who had, thus, been in possession for over 12

years. Noticing that the plea sought to be taken by the

plaintiff was not totally new or inconsistent or contradictory

and the proposed amendment was of a clarificatory nature

to show how the plaintiff became the allottee of the stall, the

amendment was allowed by this Court.

In the case before this Court, the plaintiffs have

already alleged in para 14 of the plaint that they had come

across the goods of the defendants bearing the trademark

TIYA with logo and on enquiry, the plaintiffs came to know

that the defendants had started commercial use of the

trademark and were carrying their activity in a clandestine

and deceitful manner, without issuing any formal

bills/invoices and without even mentioning the address on

the packaging. By way of proposed amendment, the

plaintiffs want only to clarify that the sale referred by them

was being made by the defendants in Delhi and that they

have business activities in the jurisdiction of this Court.

The proposed amendment does not change nature of the

suit or the cause of action on which it is based and does not

prejudice the defendants in any manner. It is also a settled

proposition of law that the Court should allow all

amendments, which are necessary for determining the

matters in controversy between the parties since the object

of the Court is to decide the right of the parties and not to

punish them for the mistake they make in conduct of their

cases.

24. In the case of Archie Comic Publications (supra),

referred by the learned counsel for the defendants, this

Court, referring to its earlier decision in Hans Raj Kalra v.

Kishan Kalra, AIR 1977 NOC 267 (Delhi) and Anil Goel

v. Sardari Lal, 75 (1998) DLT 641, held that if the Court,

on the basis of averments made in the plaint as originally

filed, finds that it does not have jurisdiction to entertain the

suit, the plaintiff's application under Order VI Rule 17 of the

Code of Civil Procedure would not be maintainable and

cannot be entertained. However, as stated earlier, at this

stage, it cannot be said that the averments made in the

plaint do not necessarily make out a case of territorial

jurisdiction of this Court to entertain this suit. These

averments can also be interpreted to mean that the

defendants were passing of their goods as those of the

plaintiffs in Delhi and, therefore, this Court has territorial

jurisdiction to try the present suit. Moreover, in the case

before this court, the defendants themselves have made

averment, which may constitute jurisdiction of this court to

try the present suit.

25. I.A. 6505/2010 filed by the plaintiff is, therefore,

allowed, subject to payment of Rs.10,000/- as costs.

Amended plaint be filed within four weeks from today.

CS(OS) No.720/2009 & I.A. No.5353/2009 (O.39 R.1 & 2 CPC), I.A. No.464/2010 (S. 151 CPC)

26. Written statement to the amended plaint by the

defendants can be filed within four weeks of the filing of the

amended plaint. Replication thereto, if any, can be filed

within four weeks thereafter.

27. List the matter on 22nd March, 2011 for framing of

issues and disposal of applications.

(V.K. JAIN) JUDGE

DECEMBER 17, 2010 vk