Delhi High Court
Travellers Exchange Corporation ... vs Celebrities Management Private ... on 7 December, 2017
$~1(CS)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : DECEMBER 07, 2017
+ CS(COMM) 51/2016, and I.As. No.1110/2016 (u/O 39 R 1 & 2
CPC) 1152/2017 (u/S 124 of the Trademarks Act)
TRAVELLERS EXCHANGE CORPORATION LIMITED &
ORS ..... Plaintiffs
Through : Mr.J. Sai Deepak, Advocate with
Mr.Mohit Goel, Mr.Sidhant Goel,
Mr.Bharadwaj Jaishankar and
Mr.Ashutosh Nagar, Advocates
versus
CELEBRITIES MANAGEMENT PRIVATE LIMITED
..... Defendant
Through : Mr.Abhishek Puri, Advocate with
Mr.V.Siddharth, Mr.Yasharth Misra
and Ms.Surbhi Gupta, Advocates.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (OPEN COURT)
IA No.12078/2016 [u/O 11 R-1 (5) CPC]
1.
The instant IA has been filed by the plaintiffs to place on record
additional documents detailed in para (6) of the application. It is
contested by the defendant.
2. The suit is still at an initial stage and issues have not yet been
framed. It is urged by the learned counsel for the plaintiffs that these
documents are material and were not in their knowledge earlier.
3. Considering the facts and circumstances of the case, the plaintiffs
are permitted to place on record the additional documents, as prayed
for.
4. The application stands disposed of.
IA Nos.5793/2016 (u/O VII R-10 CPC) and 8144/2016 (u/O VI R-17
CPC)
1. The plaintiffs have filed IA No.8144/2016 to seek amendment of
para No.33 of the plaint. It is contested by the defendant.
2. IA No.5793/2016 has been filed on behalf of the defendant for
return of the plaint as this court has no territorial jurisdiction to
entertain and decide the present suit. It is contested by the plaintiffs.
3. I have heard the learned counsel for the parties and have
examined the file. On perusal of the record it reveals that the present
suit has been filed by the plaintiffs against the defendant for permanent
injunction restraining infringement of trademarks, passing off, dilution
of goodwill, unfair competition, rendition of accounts of
profits/damages, delivery up, etc. Vide order dated 25.01.2016, interim
ex-parte stay was granted and the defendant was restrained from using
the offending mark till the next date of hearing. The said order was
challenged in FAO(OS) (COMM) 25/2016; it resulted in dismissal by
an order dated 3.5.2016. In the said appeal, seemingly, the defendant
did not raise the issue of lack of territorial jurisdiction. By an order
dated 9.5.2016 in IA No.4315/2016 (u/O 39 R-4 CPC), ex-parte order
dated 25.01.2016 was modified and the defendant was restrained not to
use the mark 'TRAVELXP' in relation to business falling in classes 16,
35 and 36.
4. Learned counsel for the defendant urged that the application for
seeking amendment of the plaint cannot be allowed to enable the
plaintiffs to bring their case within the territorial jurisdiction of this
Court, the amendment sought is not bona fide. All these facts were
within the plaintiffs' knowledge. It is a belated attempt by the plaintiffs
to improve upon their case before this Court.
5. Para 33 of the original plaint reads as under:
"That this Hon'ble Court has the necessary territorial
jurisdiction to entertain and try this Suit by virtue of Section
134 of the Trade Marks Act as the plaintiff No.3 has a
physical place of business in Delhi from where it carries on
business for profit and gain. Additionally the plaintiffs have
a virtual presence in Delhi through their websites
<www.travelex.co.in> and <www.travelex.com> through
which the plaintiffs also carry out business of profit and
gain. The Hon'ble Court also has the necessary jurisdiction
as the illegal business activities of the Defendant under the
infringing trade mark are being carried out in Delhi. The
Defendant's website on which the Infringing Trade Name of
the Defendant has been published, namely,
<www.travelxp.tv>, is easily accessible for concluding
business transactions by a person/consumer in New Delhi.
The said website can be accessed by a consumer in Delhi to
avail services being offered by the Defendant under the
Infringing Trade Name."
6. By this amendment, the plaintiffs seeks to amend para 33 to
further elaborate as under:-
"That this Hon'ble Court has the necessary territorial
jurisdiction to entertain and try this Suit by virtue of Section
134 of the Trade Marks Act as the Plaintiff No.3 has a
physical place of business in Delhi from where it carries on
business for profit and gain. Additionally the plaintiffs have
a virtual presence in Delhi through their websites
www.travelex.co.in and www.travelex.com through which
the plaintiffs also carry out the business for profit and gain.
The Hon'ble Court also has the necessary jurisdiction as
the illegal business activities of the Defendant under the
infringing trade mark are being carried out in Delhi. The
Defendant's website on which the Infringing Trade Name of
the defendant has been published, namely, www.travelxp.tv,
is easily accessible for concluding business transactions by
a person/consumer in New Delhi. The said website can be
accessed by a consumer in Delhi to avail services being
offered by the Defendant under the Infringing Trade name.
The Defendants also run a website named
<www.travelxp.com.>, which specifically targets consumers
based in Delhi amongst others. A transaction can be
concluded through this website with any consumer based in
Delhi. Moreover, the Defendant also runs a Television
channel by the name 'travelxp hd' which can be viewed
openly by a person/consumer in Delhi. The Defendant also
runs a Youtube channel named 'travelxp', with the names
'travelxp hd' and 'travelxp 4k' on its videos. The
Defendant's Youtube channel is also openly accessible by a
person/consumer based in Delhi.
7. Apparently, the plaintiffs do not intend to introduce any fresh
cause of action to bring their case within the territorial jurisdiction of
this Court. In the initial para 33 of the plaint, it was categorically
claimed by the plaintiffs that this Court has territorial jurisdiction for
various reasons detailed therein. By this amendment, the plaintiffs
intend to incorporate certain more facts which were not purportedly in
their knowledge earlier to buttress their plea that this Court has
territorial jurisdiction to entertain and decide the instant suit.
8. In LT Foods Limited vs. Heritage Foods (India) Limited 2014
SCC OnLine Del 2918, this Court observed
"It is well settled proposition of law that in examining the
case from the stand point of Order VII Rule 10 CPC, the
plaint must be taken as it is and the averments made therein
must be accepted as true. Only if, on assuming the
averments made in the plaint to be true and correct, the
Court comes to the conclusion that it would not have
territorial jurisdiction, could be plaint be returned for filing
it in a Court having jurisdiction. The Court, while
examining this aspect of the matter cannot go beyond the
facts stated in the plaint. In other words, the court cannot
examine any defence contained in the written statement filed
on behalf of the defendant."
9. This Court is of the view that the proposed amendment is
necessary to ascertain and to decide the IA under order VII rule 10
CPC. In a recent judgment titled Subhashini Malik vs.S.K.Gandhi and
Ors. [CS(OS) No.1416/2009] of Full Bench of this Court, it was held
that an application under Order VI Rule 10 CPC moved for amendment
of a plaint to bring the suit within the pecuniary jurisdiction of this
Court can be considered.
10. In the instant case by the proposed amendment, the plaintiffs only
intend to elaborate the grounds in para No.33 of the plaint to assert that
this court has territorial jurisdiction to entertain and decide the suit. IA
No. IA No.5793/2016 filed by the defendant for return of the plaint can
be considered on merits after the plaintiffs are permitted to amend the
plaint incorporating the additional facts in Para 33 of the plaint. At the
time of consideration of the amendment application, its merits and
demerits cannot be gone through; it is a question which can be decided
at the trial of the suit.
11. Considering the facts and circumstances of the case, the proposed
IA No.8144/2016 seeking amendment in para 33 of the plaintiffs is
allowed subject to costs of `40,000/- to be paid to the defendant by the
plaintiffs.
12. IA No.5793/2016 shall be considered on merits taking into
consideration the proposed amendment and response to it.
13. In view of above, IA No.8144/2016 stands disposed of.
14. IA No.5793/2016 shall be listed before the Roster Bench.
CS(COMM) 51/2016, and I.As. No.1110/2016 (u/O 39 R 1 & 2
CPC) 1152/2017 (u/S 124 of the Trademarks Act), 5793/2016 (u/O
VII R-10 CPC)
1. Amended plaint is on record.
2. List the matter before Roster Bench on 19th December, 2017 for
directions.
S.P.GARG
(JUDGE)
DECEMBER 07, 2017/sa
