Delhi High Court
Ashoka Distillers & Chemicals Pvt ... vs Ads Spirits Pvt Ltd on 15 March, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 566/2016 & I.A.No.13349/2015
ASHOKA DISTILLERS &
CHEMICALS PVT LTD ..... Plaintiff
Through Mr.Sushant Singh with
Mr.Tajinder Singh, Advocates.
versus
ADS SPIRITS PVT LTD ..... Defendant
Through Mr.S.K.Sharma with Mr.Prayas
Aneja and Mr.Rahul Sharma,
Advocates.
% Date of Decision: 15th March, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present suit has been filed for permanent injunction,
infringement of trademark, copyright, passing off, delivery up and
damages.
2. Learned counsel for the defendant states that the plaintiff has
wrongly invoked the jurisdiction of this Court. He states that the
impugned product in the present suit i.e. MATWALA country liquor
is a restricted product which is not available within the jurisdiction of
this Court.
3. He states that the plaintiff has no reason to file the present suit
in Delhi as the plaintiff admittedly has its registered office in Haryana
and is carrying on its business activities pertaining to the impugned
trademark in Haryana only. Hence, according to the learned counsel
for the defendant, this Court has no territorial jurisdiction to try and
entertain the present suit. In support of his submissions, he relies upon
the judgment passed by this Court in Piccadily Agro Industries Ltd.
Vs. Ashok Jain and Ors. 2017 SCC OnLine Del 8736.
4. Per contra, learned counsel for the plaintiff states that the
present suit is a quia timet action based upon apprehended usage and
is intended to prevent apprehended wrongs and anticipated mischief.
According to him, the fact that the defendants were not selling their
products in Delhi, as of today, would not take away part of the cause
of action which was preventive of a future course of conduct on the
part of the defendant.
5. Learned counsel for the plaintiff also refers to para 24 of the
plaint wherein it is stated that this Court has territorial jurisdiction
under Section 134 of the Trade Marks Act, 1999, Section 62(2) of the
Copyright Act and Section 20 of the CPC.
6. Having heard learned counsel for the parties, this Court finds
that the impugned products of the contesting parties are available and
sold within the State of Haryana only as approved by the Excise
Department, Haryana. The label on both the plaintiff and defendant's
bottles also bear a sale warning/ restriction written diagonally across
the picture "For Sale in Haryana Only".
7. A perusal of para 24 of the plaint reveals that it is primarily
based on Sections 134 of the Trade Marks Act and 62(2) of the
Copyright Act. The plaintiff's registered office is situated in Haryana
and the defendant is also carrying on its business in Haryana. As both
the plaintiff and defendant carry on their business in Haryana, this
Court is of the opinion that in view of the judgments passed in Indian
Performing Rights Society Vs. Sanjay Dalia & Anr., (2015) 10 SCC
161 and Ultra Home Construction Pvt. Ltd. Vs. Purushottam Kumar
Chaubey & Ors., 2016 SCC Online Del.376, the Court in Haryana
would have the territorial jurisdiction. The relevant portion of the
judgment in Indian Performing Rights Society (supra) is reproduced
hereinbelow:-
"20. In our opinion, in a case where the cause of action has
arisen at a place where the plaintiff is residing or where
there are more than one such persons, any of them actually
or voluntarily resides or carries on business or personally
works for gain would oust the jurisdiction of other place
where the cause of action has not arisen though at such a
place, by virtue of having subordinate office, the plaintiff
instituting a suit or other proceedings might be carrying on
business or personally works for gain.
21. At the same time, the provisions of Section 62 of the
Copyright Act and Section 134 of the Trade Marks Act have
removed the embargo of suing at place of accrual of cause
of action wholly or in part, with regard to a place where the
plaintiff or any of them ordinarily resides, carries on
business or personally works for gain. We agree to the
aforesaid extent that the impediment imposed under Section
20 CPC to a plaintiff to institute a suit in a court where the
defendant resides or carries on business or where the cause
of action wholly or in part arises, has been removed. But
the right is subject to the rider in case the plaintiff resides or
has its principal place of business/carries on business or
personally works for gain at a place where cause of action
has also arisen, suit should be filed at that place not at other
places where the plaintiff is having branch offices, etc."
8. Consequently, this Court is of the view that it has no territorial
jurisdiction to entertain the present suit.
9. This Court is further of the opinion that the present suit is not a
quia timet action as there is no averment in the plaint that the
defendant intends to launch their product in Delhi.
10. This Court is of the view that the present controversy is covered
by the judgment of this Court in Piccadily Agro Industries Ltd.
(supra).
11. Accordingly, present plaint and application are directed to be
returned under Order VII Rule 10 CPC. The plaintiff may, if it so
desire, move appropriate application under Order VII Rule 10A CPC.
12. However, to facilitate filing of the present plaint in a court
having territorial jurisdiction, this Court directs that the interim order
dated 08th July, 2015 shall continue to operate for a period of eight
weeks. The plaint as well as the documents filed by the plaintiff are
directed to be returned to the plaintiff by the Registry of this Court
within a period of one week. For this purpose, list the matter before
the Joint Registrar on 22nd March, 2018.
13. It is made clear that in the event either the plaint is not filed in
the court of competent jurisdiction within the aforesaid stipulated
period or if no interim order is passed by the competent court within
the said time, the interim order passed by this Court shall cease to
operate.
14. With the aforesaid directions, the present suit and pending
application stand disposed of.
MANMOHAN, J
MARCH 15, 2018
KA
