Parul Homoeo Laboratory Pvt Ltd vs Royal Group
2017 Latest Caselaw 2460 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CS(OS) 1065/2015 & I.A. 8029/2015 AND 12390/2015

      PARUL HOMOEO LABORATORY PVT LTD          ..... Plaintiff
                  Through: Mr. D.K. Yadav, Advocate.

                           versus

      ROYAL GROUP                                        ..... Defendant
                           Through: Ms. Shyel Trehan, Advocate with
                                    Ms. Manjira Dasgupta, Advocate.

%                                   Date of Decision : 17th May, 2017

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN

                           JUDGMENT

MANMOHAN, J (Oral):

I.A. 19506/2015 in CS(OS) 1065/2015 Present application has been filed by the defendant under Section 152 CPC for correction of typographical error.

In the application, it has been averred that in the order dated 14 th August, 2015, the turnover of the plaintiff has wrongly been recorded as Rs.33 lacs during the year 2015 instead of Rs.3,32,855/-.

In view of the said averment, the present application is allowed. I.A. 19505/2015 in CS(OS) 1065/2015

1. Present application has been filed by the defendant under Order VII Rule 11 CPC for rejection of the plaint.

2. Ms. Shyel Trehan, learned counsel for defendant submits that the plaint does not disclose any cause of action and is an abuse of process of Court.

3. She states that the learned Predecessor of this Court vide order dated 14th August, 2015 not only allowed the defendant's application under Order XXXIX Rule 4 CPC and vacated the ex parte ad interim order, but also held that this Court has no territorial jurisdiction to entertain the present suit. The relevant portion of the order dated 14th August, 2015 relied upon by the learned counsel for defendant-applicant is reproduced hereinbelow:-

"4. In the written statement, defendant took a preliminary objection that this Court had no territorial jurisdiction to entertain and try the present suit. Defendant was not carrying on any business activity within the territory of Delhi. Defendant was not selling its products directly or indirectly within the territory of Delhi. It was not even manufacturing for export any product within the territory of Delhi. Defendant's products were not sold in India. Defendant was manufacturing its products through M/s Milan Laboratories Pvt. Ltd., located at Mumbai and was exporting the same to various countries from Mumbai. Section 134(a) of the Trade Marks Act, 1999 was not attracted in this case as the plaintiff's mark was not a registered trade mark, thus, was not infringed, in any manner, by the defendant. Defendant had been using the trade mark "HAEMO FORTE" right from 1994 and was exporting its products to over ten countries. Defendant had applied for registration of its trade mark in India on 1st May, 2007; whereas plaintiff had applied for registration on 14th March, 2015. Suit was filed by the plaintiff as a counterblast to the desist notice dated 30th October, 2014 served by the defendant on the plaintiff. Defendant was exporting its products to Rwanda, Kenya, Nigeria, Democratic Republic of Congo, Sierra Leone, Uganda etc. Defendant's products had acquired a transnational reputation. Defendant came to know about the illegal use of its trade mark by the plaintiff in the year 2014, consequently, issued the desist notice to the plaintiff. Annual turnover of the defendant was USD 5.5 millions.

xxxx xxxx xxxx xxxx

11. This is a suit for passing off, accordingly, territorial jurisdiction is to be governed by Section 20 of the Code. Sections 20(a) and 20(b) are not attracted in this case as the defendant does not actually and voluntarily reside or carries on business or personally work for gain within the territorial jurisdiction of this Court. Defendant is having its office at Mehar Sons Estate, Talpur Road, Karachi 74000, Pakistan and has entered into a Manufacturing Agreement with M/s. Milan Laboratories Pvt. Ltd. located at Mumbai and is exporting its products from Mumbai. Accordingly, plaintiff can place reliance only on Clause (c) of the Code, which envisages that plaintiff can institute a suit in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. In this case, plaintiff has not disclosed any „cause of action‟ within the territory of Delhi. Accordingly, Section 20 of the Code is not applicable in this case so as to attract the jurisdiction of Courts at Delhi.

xxxx xxxx xxxx xxxx

12. Though, in para 29 of the plaint, plaintiff has alleged that defendant is committing the impugned acts within the jurisdiction of this Court by conducting, soliciting, manufacturing, selling, importing, exporting and marketing their goods in India. However, no such document has been placed on record to show that defendant is either manufacturing for the purpose of export or otherwise any of its products in Delhi or is selling the same within the territorial bounds of Delhi. Accordingly, it cannot be said that any cause of action has arisen within the territorial jurisdiction of this Court."

4. In reply, learned counsel for plaintiff contends that as there is a specific averment in the plaint that this Court has territorial jurisdiction, the defendant's application under Order VII Rule 11 CPC cannot be allowed. In support of his contention, he also relies upon para 29 of the plaint, which reads as under:-

"29. That this Hon‟ble Court has the territorial jurisdiction to try and adjudicate the present suit. The defendant is committing the impugned acts within the jurisdiction of this Hon‟ble Court by conducting, soliciting, manufacturing, selling, importing, exporting and marketing their impugned goods and business under the impugned trade mark in India within the jurisdiction of this Hon‟ble Court without any specific region. The defendant is carrying the trade and business in Delhi besides other parts of the country which defendant themselves admits in the legal notice. The plaintiff is carrying on the trade and business in Delhi through its authorized distributor, M/s. Arya Homoeopathic Chemist, U-70/5, Shakarpur, Delhi-110092. The plaintiff has tremendous goodwill and reputation in its trade mark which is being tarnished by defendant‟s impugned activities in Delhi accordingly the impugned act of infringement and/or passing off is being committed in Delhi. The plaintiff‟s said proprietary rights are being prejudicially affected in Delhi due to the defendant‟s impugned activities. Accordingly the Hon‟ble Court has jurisdiction to try and adjudicate the present suit within the meaning of Section 134 of the Trade Marks Act, 1999 as well as Section 62(2) of the Copyright Act, 1957. Accordingly, the Hon‟ble Court has jurisdiction to try and adjudicate the present suit."

5. Learned counsel for the plaintiff submits that while considering the present application under Order VII Rule 11 CPC, this Court can only examine the averments made in the plaint. In support of his submission, he relies upon a judgment of the Supreme Court in Bhau Ram Vs. Janak Singh & Ors., 2012 (6) Scale 530 wherein it has been held as under:-

"8. The law has been settled by this Court in various decisions that while considering an application under Order VII Rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. [vide C. Natrajan vs. Ashim Bai and Another, (2007) 14 SCC 183, Ram Prakash Gupta vs. Rajiv Kumar Gupta and Others, (2007) 10 SCC 59, Hardesh Ores (P) Ltd. vs. Hede and Company, (2007) 5 SCC 614, Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and others,

(2006) 3 SCC 100, Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137, Saleem Bhai and Others vs. State of Maharashtra and Others, (2003) 1 SCC 557]. The above view has been once again reiterated in the recent decision of this Court in The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, 2012 (6) JT 149."

6. Learned counsel for plaintiff further points out that the defendant in its legal notice dated 30th October, 2014 has admitted that it manufactures its goods in India and its trademark is immensely popular amongst the members of trade and public in India. Consequently, he contends that it is the defendant's own case that it is doing business in India.

7. Having heard learned counsel for parties, this Court is of the opinion that if in view of subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the court to take such action as is necessary in the interest of justice, which includes disposing of infructuous litigation. For the said purpose it will be open to the parties concerned to make an application to bring to the notice of the court the facts and circumstance which have made the pending litigation infructuous. [Shipping Corpn. of India Ltd. v. Machado Bros. and Ors., (2004) 11 SCC 168]

8. In the present case, plaintiff's reliance on para 29 of the plaint is misplaced inasmuch as its Director in a statement under Order X CPC has stated that he does not know as to on what basis the facts narrated in para 29 of the plaint had been made. The statement of the Director of the plaintiff- company recorded under Order 10 CPC on 14th August, 2015 is reproduced hereinbelow:-

"Statement of Sh. Amit Shukla s/ Dr. Pradeep Kumar Shukla R/o 108-90-A, Durga Devi Marg, P. Road, Kanpuar.

On S.A.

I am Director of M/s. Parul Homoeo Laboratory Pvt. Ltd. M/s Royal Group has its office in Mumbai. Hence, I do not have personal knowledge, about this fact. I do not know if defendant has any office in Delhi. I do not know whether the defendant is selling any goods in Delhi. Neither any employee of the defendant nor I have purchased any of the goods of the defendant in Delhi. (At this stage, learned counsel for the plaintiff has prompted by saying that Mr. Sumit Shukla is looking after the affair of the company and not Mr. Amit Shukla). I am actively involved in the business carried on by the plaintiff. I am looking after the manufacturing aspect of the company. I do not know as to on what basis, the facts narrated in para no. 29 of the plaint have been made."

(emphasis supplied)

9. In any event, para 29 of the plaint is contrary to para 26 wherein it is stated, "that the plaintiff has not come across the impugned goods in the course of trade and business." In para 26, the plaintiff further stated that, "the defendant has not used the trademark in the course of trade and business in India...."

10. Moreover, the defendant's reply to the legal notice does not state that the defendant is selling its products in India much less in Delhi. The admitted position is that defendant manufactures its goods in Mumbai and not in Delhi.

11. Even my learned Predecessor after analysing the aforesaid statement under Order 10 CPC held that the plaintiff had failed to disclose any cause of action in Delhi. The relevant finding of my learned Predecessor is reproduced hereinbelow:-

"13. Shri Amit Shukla, Director of the plaintiff appeared in Court on 14th August, 2015 and his statement under Order 10 of the Code was recorded, wherein he has stated that defendant has its office at Mumbai. He further stated that he was not having any

personal knowledge even about this fact. He was not aware if defendant was having any office in Delhi. He was not aware as to whether defendant had been selling any goods in Delhi. He admitted that neither he nor any employee of the defendant had purchased any of the goods of the defendant in Delhi. He further stated that he was not aware as to on what basis the facts, as mentioned in para 29 of the plaint, had been made. Accordingly, I am of the prima facie view that plaintiff has failed to disclose any cause of action in Delhi."

12. In fact, in the present case, my learned Predecessor has categorically held in the order dated 14th August, 2015 that this Court has no territorial jurisdiction to entertain the suit. The finding to the said effect is reproduced hereinbelow:-

"16. For the foregoing reasons, I am of the, prima facie, view that this Court has no territorial jurisdiction to entertain and try this suit. Accordingly, plaintiff has failed to make out a, prima facie, case in its favour for grant of injunction order in its favour, in the facts of this case. In my view, plaintiff will not suffer any loss or injury in case the injunction, as prayed for, is declined, inasmuch as balance of convenience is also not in favour of the plaintiff, since this Court lacks territorial jurisdiction to entertain this suit. Accordingly, application under Section 39 Rule 1 and 2 of the Code is dismissed and application under Order 39 Rule 4 of the Code is allowed. Interim order dated 21st April, 2015 is vacated."

(emphasis supplied)

13. Even the appeal being FAO(OS) 657/2015 filed by the plaintiff against the said order, was dismissed as withdrawn.

14. Consequently, as the aforesaid finding of my learned Predecessor has attained finality, this Court is of the view that it has no territorial jurisdiction to entertain the present plaint.

15. Accordingly, the plaint is directed to be returned under Order VII Rule 10 CPC to the plaintiff.

16. List before the Joint Registrar on 26th May, 2017 for return of the plaint. Crl.M.A. 13599/2015 in CS(OS) 1065/2015 Learned counsel for non-applicant/plaintiff tenders unconditional and unqualified apology.

Keeping in view the fact that the matter is at the inception stage, the present application is disposed of after accepting the unconditional and unqualified apology, subject to payment of costs of Rs.1 lac payable to the learned counsel for the defendant.

MANMOHAN, J MAY 17, 2017 js