M/S Andslite Pvt Ltd vs Rupa Sujit Talwar & Anr
2015 Latest Caselaw 8783 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Order Pronounced on: 26th November, 2015

+             CS (OS) No.2624/2015 & I.A. No.18250/2015

       M/S ANDSLITE PVT LTD                                           ..... Plaintiff
                      Through            Mr.Umesh Mishra, Adv.

                           versus

       RUPA SUJIT TALWAR & ANR                  ..... Defendants
                      Through  Mr.H.S.Chaudhary, Adv. for D-1.
                               Mr.Ravindra Kumar, Adv. for D-2.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The plaintiff has filed the suit for permanent injunction restraining infringement of Design bearing No.265485, passing off as well as for rendition of account etc. The valuation of the suit is Rs.20,01,000/-. The defendants No.1 & 2 have filed their written statements separately on 24th November, 2015. The same are on the record. In the written statements, admittedly, the defendants have challenged the registration of the designs of the plaintiff, which is the subject matter of the suit, under Section 19 of the Designs Act, 2000.

2. When the matter is taken up today, the learned counsel for the plaintiff submits that though the suit has been valued for the purposes of Court fee and jurisdiction at Rs.20,01,000/-, the same is not to be transferred to the jurisdictional subordinate courts in view of the statutory provision of Section 22(4) of the Designs Act, 2000 and as per the second proviso of Section 7 of the Ordinance, irrespective of its pecuniary value. He further submits that since the defendants have challenged the registrations of the designs in question, the suit has to

be decided by a Commercial Division of the High Court which has the Ordinary Original Civil Jurisdiction. Where a suit is filed for injunction to restrain the defendant from using a certain design, it is open to the defendant to raise a plea that the plaintiff is not the owner of the design and the design in question is not new or original, in the written statement as a defence or by filing of application for cancellation. Once the validity of the design is challenged either in the written statement as a defence or by filing of a separate cancellation petition, the suit if filed before the District Judge (District Court), the same has to be transferred to the Commercial Division of the High Court. Similarly, if the challenge in a matter is already pending in the High Court, the same has to be decided by the High Court's Commercial Division.

3. Under these circumstances, I am of the considered view that the present matter is not to be transferred to the District Court, as the same is deemed to be heard and disposed of by the Commercial Division of the High Court which has the Ordinary Original Civil Jurisdiction. This Court is dealing with the Special Act as well as the deeming provisions. The submission of the learned counsel for the plaintiff is accordingly accepted.

4. Let the replications and rejoinders, if any, be filed within four weeks.

5. The parties to appear before the Joint Registrar on 18 th February, 2016 for admission/denial of the documents.

6. Copies of this order be given dasti to both the parties, under the signatures of the Court Master.

(MANMOHAN SINGH) JUDGE NOVEMBER 26, 2015