Bajaj Resources Limited & Anr. vs Goyal Herbals Private Limited & ...
2017 Latest Caselaw 6704 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS(COMM) No.1564/2016

%                                                24th November, 2017

BAJAJ RESOURCES LIMITED & ANR.                ..... Plaintiffs
                  Through  Mr. J. Sai Deepak, Mr. Piyush
                           Kumar and Mr. Vardaan
                           Anand, Advs.
                  versus

GOYAL HERBALS PRIVATE LIMITED & ORS. ..... Defendants
                 Through  Mr. Jaspreet Singh Kapur and
                          Mr. Rahul Kukreja, Advs.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

IA No.8739/2017 (u/O. VI R.17 CPC filed by plaintiff) and
IA No.9810/2017 (u/O.VII R.10 CPC filed by defendants)


1.

(i) This is a suit filed by two plaintiffs. Plaintiff no.1 is Bajaj

Resources Limited. Plaintiff no.2 is Bajaj Corporation Limited. The

subject suit is a suit for infringement of the trademark, passing off,

dilution, unfair competition and damages etc. Plaintiff no.1 is the

owner of the subject trademark. Plaintiff no.2 is a licensee for user of

the trademark.

(ii) There are five defendants in the suit. Defendant no.1 is a

company M/s. Goyal Herbals Private Limited. Defendant no.1 is

marketing the impugned products which are manufactured by the

defendant no.4 M/s. Gaurav Herbal Udyog. Defendant nos. 2, 3 and 5

are also the selling agents of the products being manufactured by the

defendant no.4.

2. The disputes between the parties pertain to the claim of

the plaintiffs that there is infringement by the defendants of the

plaintiff's trademark. The subject trademark is a composite trademark

in the form of a shape of bottle with its label containing the word mark

Bajaj Almond Drops along with the trade-dress as a whole containing

the word mark Bajaj Almond Drops. Almond hair oil is sold by the

plaintiffs. The disputes arise on account of the claim of the plaintiffs

that the defendants are selling almond hair oil in bottles with a label

containing the word mark Balaji Almond Drops and which act of the

defendants is pleaded to violate legal rights of the plaintiffs in its

trademark.

3. In the present/existing plaint, the paragraphs with respect

to cause of action pleaded with respect to territorial jurisdiction is para

56 and this para 56 reads as under:-

"That this Court has necessary territorial jurisdiction to entertain and try the present suit under Section 134 of the Trade Marks Act, 1999 and Section 62 of the Copyright Act, 1962 as the plaintiff No.1 has its registered office within the jurisdiction of this Hon'ble Court and also carries on business and/or works for gain within the territorial jurisdiction of the Hon'ble Court. In view of above, this Hon'ble Court has jurisdiction to try, entertain and dispose of the present suit."

4. Therefore the plaint as it stands on date when the

application for amendment of the plaint was filed by the plaintiff, the

plaintiff claimed existence of territorial jurisdiction of this Court as

per Section 134 of the Trademark Act and Section 62 of the Copyright

Act on account of plaintiff No.1 carrying on business at Delhi. The

suit therefore was filed not on the basis of arising of cause of action

wholly or in part as per Section 20(c) CPC, but only on account of

Sections 20(a) and (b) CPC read with Section 134 of the Trademark

Act and Section 62 of the Copyright Act viz pertaining to the

residence and carrying on of the business of the plaintiff no.1

company at Delhi.

5. The defendants have filed the subject application under

Order VII Rule 10 CPC for return of the plaint by pleading that neither

of the defendants as per the plaint and memo of parties are stated to

be carrying on business in Delhi and therefore this Court would not

have territorial jurisdiction because the ingredients of Section 20(c)

CPC do not exist in the existing para 56 of the plaint. The defendants

then plead that the plaintiff no.2 company has its branch office at

Varanasi and consequently in accordance with the ratio of the

judgment of the Supreme Court in the case of Indian Performing

Rights Society Limited vs. Sanjay Dalia and Another (2015) 10 SCC

161 the Courts at Varanasi, U.P. would have territorial jurisdiction.

6. It is seen that as per the existing plaint so far as the

plaintiff no.2 is concerned, its rights are asserted as per the reliefs

claimed in the suit on account of plaintiff no.2 company being a

licensee of the plaintiff no.1. Plaintiff no.2 however does not have as

per the memo of parties any office at Delhi and the address of the

plaintiff no.2 as per the memo of parties is at Old Station Road,

Sevashram Chouraha, Udaipur, Rajasthan- 313001. Therefore para 56

of the plaint relates to, and as per the language of the para 56 of the

plaint, only to plaintiff no.1. The suit therefore even in the absence of

plaintiff no.2 which is said to have a branch office at Varanasi in U.P.,

can be continued by plaintiff no.1 solely with respect to the relief

claim of infringement of the subject trademark. I may note that

plaintiffs however dispute that the plaintiff no.2 has any branch office

at Varanasi in U.P., and which aspect is a disputed question of fact

which would require trial.

7. Learned counsel for the plaintiffs argues, and I agree with

his argument, that even if as per the plaint which presently stands

there is no cause of action qua territorial jurisdiction qua plaintiff no.2

company, however, since the suit can continue with respect to the

plaintiff no.1 company with respect to cause of action of infringement

of the trademark, therefore, by adding fresh paras with respect to

territorial jurisdiction by making factual averments required by

Section 20(c) CPC, plaintiff no.1 is in fact only adding a cause of

action in the suit, and with respect to which suit the Court already has

territorial jurisdiction with respect to plaintiff no.1 of cause of action

on infringement of the trademark by the defendants.

8. In terms of the amendment application filed by the

plaintiffs, and which is presently being disposed of, the following

paras 29 and 56 are sought to be added/amended and these paras 29

and 56 read as under:-

"29. That the defendant No.1 is a company incorporated in the year 2000 under the Companies Act, 1956 having its registered office at J- 12/15-F (KHA), PIPLANI KATRA, BAULIA, NATI, IMLI, VARANASI, UTTAR PRADESH-221007 and branch office at D-25, D Block, Sector 2, Noida, Uttar Pradesh 201301 and also at 104, Ist Floor, Vishwadeep Building, District Centre, Janakpuri, Delhi- 110058. The defendant No.1 is engaged inter alia in the similar business of marketing of hair care, personal care, oral care products viz. hair oil, tooth powder etc. The defendant No.1 appears to be a company incorporated under the Companies Act, 1956, but the plaintiffs reserve their right to add/amend parties if required or directed by this Hon'ble Court. Defendant Nos.2 and 3 are the directors of defendant No.1 company.

xxxxx xxxxx xxxxx

56. That this Court has necessary territorial jurisdiction to entertain and try the present suit under Section 134 of the Trade Marks Act, 1999 and Section 62 of the Copyright Act, 1962 as the plaintiff No.1 has its registered office within the jurisdiction of this Hon'ble Court and also carries on business and/or works for gain within the territorial jurisdiction of the Hon'ble Court. That defendant No.1 also has an office in Delhi, within the territorial jurisdiction of this Hon'ble, located at 104, Ist Floor, Vishwadeep Building, District Centre, Janakpuri, Delhi - 110058, and is carrying on business and/or working for gain in Delhi from the said office. That the impugned products of defendants are also being stocked and/or sold in Delhi within the territorial jurisdiction of this Hon'ble Court. The same is, in fact, apparent from defendants' own website www.himratna.com, the relevant extracts of which are reproduced hereinbelow-

"GHPL distribution width and penetration is acknowledged and is a leverage able strength. Our distribution network covers almost every town with a population of over 50,000 of Northern India.

Rural Sales & Distribution GHPL parallel rural sales and distribution network ranks among the top three in the industry and contributes 24% to the company's topline. Their infrastructure comprises ----- direct distributors as well as ------ super distributors, catering to ----- small stockiest and ----- van markets. A

dedicated team of Territory Sales Executives and Pilot Sales Representatives distribute GHPL's as well as alliance brands through this vibrant network. GHPL's distribution width and penetration is acknowledged as one of the best in the industry and is a leverageable strength. Every month, 56 million consumer packs are sold to about 1.8 million households through 1.6 million retail outlets spread across the country. GHPL's distribution network covers almost every Indian town with a population of over 20,000. The chart below depicts GHPL's distribution network in the urban & rural markets: Thus, I out of every 10 Indians is a GHPL consumer."

"...................The introduction of new brands continued & the distribution network of the company spread to overall India. Today Goyal Herbals Pvt Ltd covers 28 states in India.............."

That it is clearly apparent from the above extracts of defendants' website that their products are commercially stocked and/or sold in Delhi within the territorial jurisdiction of this Hon'ble Court and therefore, the entire cause of action for passing off, apart from causes of action for infringement of trademark and copyright, has also arisen in Delhi within the jurisdiction of this Hon'ble Court. In view of the aforesaid, this Hon'ble Court has jurisdiction to try, entertain and dispose of the causes of action for infringement of trademark, infringement of copyright and passing off under Section 20 of Code of Civil Procedure, 1908. That additionally, this Hon'ble Court also has jurisdiction to try, entertain and dispose of cause of action for infringement of trademark and infringement of copyright under Section 134 of Trade Marks Act, 1999, and Section 62 of Copyright Act, 1957 respectively.

In view of above, this Hon'ble Court has jurisdiction to try, entertain and dispose of the present suit."

9. Learned counsel for the defendants has placed reliance

upon a judgment of Division Bench of this Court in the case of

Archie Comic Publications Inc. vs. Purple Creations Pvt. Ltd. & Ors.

172 (2010) DLT 234 to argue that once this Court does not have

territorial jurisdiction then the application of the defendants under

Order VII Rule 10 CPC must be decided first and the plaint returned

and consequently there is no scope for hearing and allowing of the

amendment by adding new paras 29 and 56 to the plaint as is sought to

be got done through IA No.8739/2017 under Order VI Rule 17 CPC.

10. In my opinion the ratio of the judgment of the Division

Bench in Archie Comic Publications (supra) relied upon by the

defendants will not help the defendants because the Division Bench in

that judgment has not decided the issue that if otherwise the Court

continues to have jurisdiction as per the existing plaint to try one cause

of action then by amendment another cause of action and another

plaintiff cannot be added. The ratio of the Division Bench in Archie

Comic Publications (supra) case will only apply of amendment not

being allowed when otherwise the Court does not have territorial

jurisdiction on all of the causes of actions pleaded as per the existing

averments in the plaint. I have already observed above that the present

suit can continue with respect to plaintiff no.1 in spite of averments of

defendants being presumed to be correct as made in the application

under Order VII Rule 10 CPC with respect to plaintiff no.2 having a

branch office at Varanasi in U.P, inasmuch as, one of the cause of

action and consequent relief claimed by the plaintiff no.1 pertains to

infringement of the trademark of the plaintiffs by the defendants, and

with respect to which cause of action this Court has the territorial

jurisdiction in view of Section 134(2) of the Trade Marks Act. In my

opinion therefore the ratio of the Archie Comic Publications (supra)

case does not help the defendants because the ratio of the judgment

will only apply if this Court did not have territorial jurisdiction at all

whereas in the present case this Court has territorial jurisdiction qua

the plaintiff no.1 with respect to cause of action and relief pertaining

to cause of action of infringement.

11. In view of the aforesaid discussion, the application under

Order VI Rule 17 CPC filed by the plaintiff is allowed and plaintiff is

allowed to add paras 29 and 56 to the plaint as stated above as by the

amendments allowed only an additional cause of action is added and

an additional plaintiff being plaintiff no.2 is added. In terms of these

amended paras plaint would now have an additional cause of action

with respect to the claim of passing off of the plaintiffs on account of

the defendants selling its goods at Delhi.

12. I may finally note that at the stage of allowing of the

amendment application the Court does not examine the truth and

falsity of the factual averments, and the averments sought to be added

are ordinarily presumed to be correct, with liberty to the other side to

dispute the same as per the amended written statement which would

now be filed on account of allowing of amendments to the plaint.

13. Accordingly, IA No.8739/2017 filed by the plaintiffs for

amendment of the plaint is allowed. Amended plaint is taken on

record.

14. Application under Order VII Rule 10 CPC filed by the

defendants being IA No.9810/2017 is rendered infructuous and

disposed of as such.

CS (Comm) No.1564/2016

15. Defendants will file their amended written statement

within a period of six weeks from today along with additional

documents. Plaintiffs will file replication within four weeks thereafter

along with relevant documents in its power and possession.

16. Parties are put to notice of the amended provisions of

CPC as made applicable by The Commercial Courts, Commercial

Division and Commercial Appellate Division of High Courts Act,

2015 whereby at the time of admission/denial of documents, the

admission/denial must be in terms of detailed endorsements as

required by the amended provisions of CPC applicable to commercial

suits.

17. Pleadings of the respective parties must not contain any

general denial and if a fact is stated to be incorrect then the detailed

facts must be mentioned that as to why a particular fact is denied and

why stated to be incorrect.

18. Parties will file affidavits of admission/denial of

documents as per the amended provisions of CPC as applicable to

commercial courts along with their pleadings and matter be listed

before the Joint Registrar for marking of exhibits to the documents on

16th January, 2018.

19. After completion of pleadings and admission/denial is

complete the Joint Registrar will list the matter in Court and any of the

parties is at liberty to file an application for summary judgment in

terms of Order XIII A CPC so that when the matter comes up for

framing of issues pleadings of such an application seeking summary

judgment by either of the parties can be heard and disposed of in

accordance with law.

20. The date fixed for issues will also be the date for case

management hearing.

NOVEMBER 24, 2017                      VALMIKI J. MEHTA, J
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