Delhi High Court
Nv Distilleries Pvt. Ltd. vs Frost Falcon Distilleries Ltd. on 15 November, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 15th November, 2018
+ CS(COMM) No.1170/2018
NV DISTILLERIES PVT. LTD. .... Plaintiff
Through: Mr. Pradeep Chhindra, Mr. Nikhil
Singh & Mr. Parinay T. Vasandani,
Advs.
Versus
FROST FALCON DISTILLERIES LTD. ......Defendant
Through: Mr. Mohan Jain, Sr. Adv. with Mr.
Chirojit Mukherjee & Ms. Prabhleen
Kaur, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.14948/2018 (of the defendant under Order VII Rules 10 and 11 of
the CPC)
1. The applicant / defendant, in this suit for permanent injunction
restraining infringement of trade mark, copyright, passing off and for
ancillary reliefs seeks, return / rejection of the plaint on the ground of this
Court not having territorial jurisdiction to entertain the suit.
2. The senior counsel for the applicant / defendant was heard at length on
30th October, 2018 when this application came up first before this Court.
However, on that date, on the request of the senior counsel for the applicant /
defendant, the hearing was adjourned to today. Today, the counsel for the
plaintiff also appears and the counsels have been further heard.
3. The plaintiff, by this suit seeks to restrain the applicant / defendant
from infringing the registered trade mark „CRAZY ROMEO‟ of the plaintiff
by marketing the same goods i.e. alcoholic beverages, under the mark
CS(COMM) No.1170/2018 Page 1 of 17
„CRAZY RIDER‟. The suit came up first before this Court on 8 th October,
2018 when, while issuing summons of the suit and notice of the application
for interim relief, the applicant / defendant, vide ex parte ad interim order,
was restrained from dealing in products with the registered trade mark of the
plaintiff „CRAZY ROMEO‟ and / or from dealing in alcoholic beverages
bearing the label „CRAZY RIDER‟ or any label deceptively similar to the
plaintiff‟s „CRAZY ROMEO‟ label and a commission was also issued to
visit the factory premises of the applicant / defendant at district Sonipat,
Haryana.
4. The plaintiff, in the memo of parties to the plaint, has given the
address of itself as well as of the applicant / defendant at New Delhi.
Additional address of the applicant / defendant at district Sonipat, Haryana
has also been given. In the plaint, it is pleaded that (i) the registered office
of the plaintiff is at New Delhi; (ii) the registered office of the applicant /
defendant is at New Delhi; and, (iii) the plaintiff came to know of the
infringement when came across the impugned label of the applicant /
defendant when the same was filed by the defendant before the Excise
Department, Panchkula, Haryana for approval / registration.
5. The plaintiff, in para no.33 of the plaint has pleaded as under:
"33. That this Hon‟ble Court has the territorial jurisdiction to try and
entertain the present suit as Plaintiff and Defendant both have their
registered office within the territorial jurisdiction of this Hon‟ble Court.
That Plaintiff is also invoking jurisdiction of this Hon‟ble Court as the
scope and extent of the Defendant‟s business is not known at present, it
is believed that they have a reasonably large scale business around India
and it is therefore strongly apprehended that they will launch the
impugned product in New Delhi and would be available within the
CS(COMM) No.1170/2018 Page 2 of 17
jurisdiction of this Hon‟ble Court. It is submitted that the threat that the
Defendant will sell and / or offer for sale the impugned product within
the jurisdiction of this Hon‟ble Court is credible and imminent. Thus,
there is a reasonable apprehension that the Defendant has a distribution
network in Delhi or likely to sell their products bearing the impugned
mark and label within the jurisdiction of this Hon‟ble Court. Thus, the
Hon‟ble Court has the necessary jurisdiction by virtue of Section 20 of
the Code of Civil Procedure, 1908. I verify that the category code is
36017."
6. The applicant / defendant, in the application has pleaded that (i) the
territorial jurisdiction of this Court has been invoked pleading that the
defendant has its registered office at Delhi and that there is a reasonable
apprehension that the defendant will launch the product in New Delhi; (ii)
till date, the applicant / defendant has not sold the brand in question in Delhi
and has no permission from Excise Department to sell the brand / product in
question in Delhi; (iii) the applicant / defendant has no intention to sell the
goods in question in Delhi, as the applicant / defendant has only the
permission from Excise Department, Haryana to sell the goods in question in
Haryana; and, (iv) the applicant / defendant has its distillery at District
Sonipat, Haryana.
7. The application otherwise runs into 22 odd pages and is full of law and
passages from the judgments referred to in the application. However, upon it
being pointed out to the senior counsel for the applicant / defendant on 30 th
October, 2018 that the application is in violation of the law relating to
pleadings, he stated that the judgments be ignored and only the pleadings
made in the application be read.
CS(COMM) No.1170/2018 Page 3 of 17
8. The senior counsel for the applicant / defendant, on 30th October, 2018
relied on Piccadily Agro Industries Ltd. Vs. Ashok Jain (2017) 241 DLT
424 which in turn relies extensively on Piccadily Agro Industries Ltd. Vs.
Ashok Narwal (2016) 229 DLT 604 which was not placed before this Court.
Since the applicant / defendant neither in the application nor during the
hearing controverted the registered office of the applicant / defendant being
situated at Delhi, it was on 30th October, 2018 enquired from the senior
counsel for the applicant / defendant, whether not owing to the said fact
alone, this Court would have territorial jurisdiction under Section 20 of the
CPC which is independent of Section 134 of the Trade Marks Act, 1999
conferring additional territorial jurisdiction with respect to suits for
infringement.
9. The senior counsel for the applicant / defendant contended that since
no cause of action had accrued to the plaintiff, notwithstanding the registered
office of the applicant / defendant being at Delhi, this Court would not have
territorial jurisdiction. On enquiry, whether not this Court, under Section 20
of the CPC would have territorial jurisdiction owing to the registered office
of the applicant / defendant being at Delhi, even if no cause of action had
accrued at Delhi, the senior counsel for the applicant / defendant referred to
Patel Roadways Ltd., Bombay Vs. Prasad Trading Company (1991) 4 SCC
270.
10. On 30th October, 2018, it was also the contention of the applicant /
defendant that the plaintiff had committed a fraud and a bunch of papers in
that regard was handed over in the Court. However, on further enquiry in
that regard being made, the senior counsel for the applicant / defendant had
sought adjournment and the hearing as aforesaid was adjourned to today.
CS(COMM) No.1170/2018 Page 4 of 17
11. Today, the senior counsel for the applicant / defendant has confined
the ground for return / rejection of the plaint to this Court not having
territorial jurisdiction and has not pressed the other ground of fraud qua
which a compilation of judgments was also handed over during the hearing
on 30th October, 2018. Thus, the need to record the said judgments in this
order is not felt.
12. The senior counsel for the applicant / defendant pegs his case on Patel
Roadways Ltd. supra and argues that Supreme Court therein has on an
interpretation of Section 20 of the CPC held that a corporation / company
cannot be sued at the address of its registered office, if has a subordinate /
branch office elsewhere and where the cause of action has also accrued. It is
argued that the plaintiff in the plaint has admitted using the mark / label, of
which infringement is claimed, in Haryana and to having its distillery at
Ambala in Haryana. It is argued that the cause of action has accrued at
Haryana and the defendant, owing to having distillery at Sonipat, Haryana
has a subordinate office at Haryana and the suit could have been filed at
Haryana only and not at Delhi where though registered office of defendant is
but no cause of action has arisen.
13. It is deemed appropriate, at the cost of adding to the length of this
judgment, to set out herein below Section 20 of the CPC (without
illustrations) as under:-
"20. Other suits to be instituted where defendants reside or cause of
action arises. - Subject to the limitations aforesaid, every suit shall be
instituted in a Court within the local limits of whose jurisdiction -
(a) the defendant, or each of the defendants where there are more than
one, at the time of the commencement of the suit, actually and
CS(COMM) No.1170/2018 Page 5 of 17
voluntarily resides, or carries on business, or personally works for
gain; or
(b) any of the defendants, where there are more than one, at the time of
the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for gain, provided that in
such case either the leave of the Court is given, or the defendants
who do not reside, or carry on business, or personally work for
gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation - A corporation shall be deemed to carry on business at its
sole or principal office in India or, in respect of any cause of action
arising at any place where it has also a subordinate office, at such
place."
(emphasis added)
and the relevant paragraphs of Patel Roadways Ltd. supra as under:
"9. Clauses (a) and (b) of Section 20 inter alia refer to a court
within the local limits of whose jurisdiction the defendant inter alia
"carries on business". Clause (c) on the other hand refers to a court
within the local limits of whose jurisdiction the cause of action wholly
or in part arises. It has not been urged before us on behalf of the
appellant that the cause of action wholly or in part arose in Bombay.
Consequently clause (c) is not attracted to the facts of these cases. What
has been urged with the aid of the Explanation to Section 20 of the
Code is that since the appellant has its principal office in Bombay it
shall be deemed to carry on business at Bombay and consequently the
courts at Bombay will also have jurisdiction. On a plain reading of the
Explanation to Section 20 of the Code we find an apparent fallacy in the
aforesaid argument. The Explanation is in two parts, one before the
word "or" occurring between the words "office in India" and the words
CS(COMM) No.1170/2018 Page 6 of 17
"in respect of" and the other thereafter. The Explanation applies to a
defendant which is a corporation which term, as seen above, would
include even a company such as the appellant in the instant case. The
first part of the Explanation applies only to such a corporation which
has its sole or principal office at a particular place. In that event the
courts within whose jurisdiction the sole or principal office of the
defendant is situate will also have jurisdiction inasmuch as even if the
defendant may not be actually carrying on business at that place, it will
"be deemed to carry on business" at that place because of the fiction
created by the Explanation. The latter part of the Explanation takes care
of a case where the defendant does not have a sole office but has a
principal office at one place and has also a subordinate office at another
place. The words "at such place" occurring at the end of the
Explanation and the word "or" referred to above which is disjunctive
clearly suggest that if the case falls within the latter part of the
Explanation it is not the Court within whose jurisdiction the principal
office of the defendant is situate but the court within whose jurisdiction
it has a subordinate office which alone shall have jurisdiction "in
respect of any cause of action arising at any place where it has also a
subordinate office".
10. Here we may point out that the view which we take finds support
from a circumstance which, in our opinion, is relevant. Section 20 of
the Code before its amendment by the Code of Civil Procedure
(Amendment) Act, 1976 had two Explanations being Explanations I
and II. By the Amendment Act Explanation I was omitted and
Explanation II was renumbered as the present Explanation. Explanation
I so omitted read as hereunder:-
"Explanation I. - Where a person has a permanent
dwelling at one place and also temporary residence at
another place, he shall be deemed to reside at both places
CS(COMM) No.1170/2018 Page 7 of 17
in respect of any cause of action arising at the place where
he has such temporary residence."
11. This Explanation dealt with the case of place of residence of the
defendant and provided with regard to a person having a permanent
dwelling at one place and also temporary at another place that such
person shall be deemed to reside at both places in respect of any cause
of action arising at the place where he has such temporary residence.
The language used in Explanation II on the other hand which is the
present Explanation was entirely different. Had the intention been that
if a corporation had its principal office at one place and a subordinate
office at another place and the cause of action arose at the place where
it had its subordinate office it shall be deemed to be carrying on
business at both places the language used in Explanation II would have
been identical to that of Explanation I which was dealing with a case of
a person having a permanent dwelling at one place and also temporary
residence at another place. The marked difference in the language of the
two Explanations clearly supports the view which we have taken with
regard to the interpretation of the present Explanation to Section 20 of
the Code which was Explanation II earlier as indicated above.
12. We would also like to add that the interpretation sought to be
placed by the appellant on the provision in question renders the
explanation totally redundant. If the intention of the legislature was, as
is said on their behalf, that a suit against a corporation could be
instituted either at the place of its sole or principal office (whether or
not the corporation carries on business at that place) or at any other
place where the cause of action arises, the provisions of clauses (a), (b)
and (c) together with the first .part of the explanation would have
completely achieved the purpose. Indeed the effect would have been
wider. The suit could have been instituted at the place of the principal
office because of the situation of such office (whether or not any actual
CS(COMM) No.1170/2018 Page 8 of 17
business was carried on there). Alternatively, a suit could have been
instituted at the place where the cause of action arose under clause (c)
(irrespective of whether the corporation had a subordinate office in such
place or not). This was, therefore, not the purpose of the explanation.
The explanation is really an explanation to clause (a). It is in the nature
of a clarification on the scope of clause (a) viz. as to where the
corporation can be said to carry on business. This, it is clarified, will be
the place where the principal office is situated (whether or not any
business actually is carried on there) or the place where a business is
carried on giving rise to a cause of action (even though the principal
office of the corporation is not located there) so long as there is a
subordinate office of the corporation situated at such place. The linking
together of the place where the cause of action arises with the place
where a subordinate office is located clearly shows that the intention of
the legislature was that, in the case of a corporation, for the purposes of
clause (a), the location of the subordinate office, within the local limits
of which a cause of action arises, is to be the relevant place for the
filing of a suit and not the principal place of business. If the intention
was that the location of the sole or principal office as well as the
location of the subordinate office (within the limits of which a cause of
action arises) are to be deemed to be places where the corporation is
deemed to be carrying on business, the disjunctive "or" will not be
there. Instead, the second part of the explanation would have read "and
in respect of any cause of action arising at any place where it has a
subordinate office, also at such place".
13. As far as we can see the interpretation which we have placed on
this section does not create any practical or undue difficulties or
disadvantage either to the plaintiff or a defendant corporation. It is true
that, normally, under clauses (a) to (c), the plaintiff has a choice of
forum and cannot be compelled to go to the place of residence or
CS(COMM) No.1170/2018 Page 9 of 17
business of the corporation and can file a suit at a place where the cause
of action arises. If a corporation desires to be protected from being
dragged into litigation at some place merely because a cause of action
arises there it can save itself from such a situation by an exclusion
clause as has been done in the present case. The clear intendment of the
Explanation, however, is that, where the corporation has a subordinate
office in the place where the cause of action arises, it cannot be heard to
say that it cannot be sued there because it does not carry on business at
that place. It would be a great hardship if, in spite of the corporation
having a subordinate office at the place where the cause of action arises
(with which in all probability the plaintiff has had dealings), such
plaintiff is to be compelled to travel to the place where the corporation
has its principal place. That place should be convenient to the plaintiff;
and since the corporation has an office at such place, it will also be
under no disadvantage. Thus the Explanation provides an alternative
locus for the corporation's place of business, not an additional one.
14. There may be only one extraordinary situation in which this
interpretation may cause an apparent anomaly. This is where the
plaintiff has also his/its place of business at the same place as the
corporation but the cause of action has arisen at some other place. The
above interpretation would preclude him from filing a suit in that place
of business common to both parties and compel him to go to a court
having jurisdiction over the place where the cause of action has arisen.
But this is not really a hardship because such plaintiff must have had
some nexus or connection with the place since some part of the cause of
action had arisen there; if he can have dealings with the corporation at
such a place giving rise to the cause of action, there is no reason why he
should find it disadvantageous or difficult to file a suit at such place.
Equally, the corporation, having a subordinate office at the place, will
suffer no disadvantage.
CS(COMM) No.1170/2018 Page 10 of 17
15. In this view of the matter since in the instant two cases clause (c) is
not attracted to confer jurisdiction on courts at Bombay and the
appellant has admittedly its subordinate offices at the respective places
where the goods in these two cases were delivered to it for purpose of
trans- port the courts at Bombay had no jurisdiction at all to entertain
the suits filed by the respondents and the parties could not confer
jurisdiction on the courts at Bombay by an agreement. Accordingly no
exception can be taken to the findings in this behalf recorded by the
trial court and the High Court in these two cases."
(emphasis added)
14. As would immediately become clear on a careful reading of the
aforesaid, Supreme Court in Patel Roadways Ltd. supra though held the
explanation to Section 20 of the CPC to be an explanation to Clause (a)
thereof rather than to Clause (c) thereof but was concerned with only the
alternative "carries on business", of the several alternatives in Clause (a). It
was not the contention before the Supreme Court in Patel Roadways Ltd.
supra that the place where the registered office of a corporation / company is
situated is also the place where the corporation, if a defendant in the suit,
"actually and voluntarily resides". Thus, no finding was returned in the said
judgment on the said aspect. Supreme Court, in the context only of
alternative "carries on business" in Clause (a) of Section 20 having held that
by virtue of explanation, which also is only to, where a corporation shall be
deemed to carry on business, having held that where a defendant company /
corporation has its principal office at one place and subordinate office at
another place and cause of action arises at a place where the subordinate
office is located, suit has to be filed only in the Court within whose
jurisdiction the company / corporation has its subordinate office and not in
Court within whose jurisdiction it has its principal office, cannot be held to
have also held that notwithstanding the word "or" between the words
"actually and voluntarily resides" or "carries on business" or "personally
works for gain", the alternative of suing the corporation at the place where it
actually and voluntarily resides is also not available. The judgment cannot
be read as eclipsing the option given by the legislature to a plaintiff, under
Section 20(a) of the Code, of suing at the place where the defendant, at the
time of commencement of the suit, actually and voluntarily resides.
15. I have not come across any judgment holding that in case a defendant
is a company or a corporation, only the option in Section 20(a) of the CPC,
of "carries on business" is available and not the option of "actually and
voluntarily resides". In Morgan Stanley Mutual Fund Vs. Kartick Das
(1994) 4 SCC 225, it was held, as far as India is concerned, the residence of
the company is where the registered office is located and normally cases
should be filed only where the registered office of the company is situated.
Again, in Dhodha House Vs. S.K. Maingi (2006) 9 SCC 41, it was reiterated
that ordinarily the residence of the company would be where its registered
office is. Once it is so, a company can always be sued under Section 20(a)
of the CPC, in the Court within whose jurisdiction the registered office of the
company is located. Not only as per the language of the explanation to
Section 20 but even as per Patel Roadways Ltd., the explanation to Section
20 is attracted only to the alternative "carries on business" in Section 20(a)
and not to the alternative "actually and voluntarily resides".
16. Mention in this regard may also be made of a dicta of the Division
Bench of the High Court of Bombay in Pratap Singh Vs. The Bank of
America 1976 SCC OnLine Bom 111, concluding on an interpretation of
Clause 12 of the Letters Patent of that Court but at par with Section 20 of the
CPC and also referring thereto, that the word „defendant‟ in Section 20 must
be given its proper meaning and would include within its compass both
natural and artificial persons i.e. living beings as well as corporations and no
distinction is made in law between corporations as are incorporated in India
and corporations as are incorporated outside India. It was further held that
under Section 20, a suit can be brought if the defendant, at the time of
institution of the suit, „dwells‟ or „carries on business‟ or „personally works
for gain‟ within the limits of the Court and that for consideration of
jurisdiction under Section 20(a), the consideration whether the cause of
action has accrued wholly or in part within or without the limits of said
jurisdiction is wholly irrelevant. Though Clause 12 of the Letters Patent uses
the word „dwells‟ instead of „resides‟ but Mulla, in his treatise on the Code
of Civil Procedure, 19th Edition, has authored that there is no distinction
between the word „resides‟ as used in Sections 16,19 and 20 of the CPC and
the word „dwell‟ in Clause 12 of the Letters Patent and the cases decided on
the latter word would be authorities on the consideration of the former.
Mention, at this stage may be made of Union of India Vs. Sri Ladulal Jain
AIR 1963 SC 1681 holding that the principle behind Section 20(a) and
Section 20(b) of the CPC is that the suit be instituted at a place where the
defendant be able to defend the suit without undue trouble. Applying the
said principle also, I fail to see as to how the defendant herein is put to any
trouble by being sued in the courts at Delhi within whose jurisdiction the
registered office of the defendant is situated. Rather, Supreme Court in
Morgan Stanley Mutual Fund supra held that where a corporation is sued
with respect to urgent reliefs, as of restraining its public issue, not at the
place of the registered office but at the place of its subordinate office, the
Court should have regard to the time taken in the subordinate office
receiving instructions from the registered office.
17. In this context, it may also be noticed that Patel Roadways Ltd. supra
was concerned with challenge by Patel Roadways Ltd. to the jurisdiction of
the Courts at Madras, where the subordinate office of the defendant Patel
Roadways Ltd., wherein the goods were entrusted to Patel Roadways Ltd.
for transportation to Delhi. Patel Roadways Ltd. contested jurisdiction of the
Courts at Madras on the plea that as per the agreed terms and conditions of
transportation, the exclusive jurisdiction was of the Courts at Bombay where
the registered office of Patel Roadways Ltd. was situated. It was in this
context held that since Patel Roadways Ltd. had a subordinate office at
Madras, the plaintiff situated at Madras could not be compelled to travel to
Bombay to sue Patel Roadways Ltd. and by consent jurisdiction could not be
conferred on the Courts at Bombay which did not have jurisdiction. Patel
Roadways Ltd. supra thus, was not a case where the defendant was sued in
Court of the place where registered office of defendant was situated. Though
in Piccadily Agro Industries Ltd. Vs. Ashok Narwal supra, the registered
office of the defendant no.2, being the manufacturer of the impugned product
(defendant no.1 was the agent), was at Delhi but it was not the contention
that the defendants therein could be sued at Delhi owing to the defendant
no.2, who was the main contesting defendant, actually and voluntarily
residing at Delhi on account of having its registered office at Delhi and thus
the question as has been adjudicated herein, did not come to be decided.
Patel Roadways Ltd. supra was followed, holding that no part of the cause of
action had accrued at Delhi. Same was the position in Piccadily Agro
Industries Ltd. Vs. Ashok Jain supra.
18. It is a settled position in law that a judgment is not a precedent on
what was not for adjudication therein, what was not discussed and debated.
The Courts, in Patel Roadways Ltd., Piccadily Agro Industries Ltd. Vs.
Ashok Narwal and Piccadily Agro Industries Ltd. Vs. Ashok Jain supra,
having not considered the effect of a defendant company being sued in the
Court within whose jurisdiction its registered office is situated, though also
having a subordinate office at another place and where the cause of action
had also accrued, the said judgments do not constitute precedent for the
proposition that such a company cannot be sued at the place of its registered
office under Section 20(a), owing to actually and voluntarily residing within
the jurisdiction of that Court.
19. Mention in addition may also be made of my dicta in Millennium &
Copthorne International Ltd. Vs. Aryans Plaza Services Pvt. Ltd. 2018
SCC OnLine Del 8260 against which no appeal is found to have been
preferred, holding territorial jurisdiction under Section 19 of the CPC to be
also available qua suits for infringement and / or passing off and for ancillary
reliefs. The matter having been discussed in detail in the cited judgment, it
is not deemed necessary to elaborate.
20. No merit is thus found in the application of the defendant for return /
rejection of the plaint.
21. Though I have not found any merit in the application but the
contentions of the counsel for the plaintiff made also be noticed.
22. The counsel for the plaintiff argues, that (i) the plaintiff has nowhere
in the plaint admitted to the applicant / defendant having subordinate office
or branch office at Haryana; (ii) plea, of the applicant / defendant having a
distillery at Sonipat in Haryana is not a plea of the applicant / defendant
having a subordinate / branch office at Haryana; (iii) Black‟s Law Dictionary
defines a „branch bank‟ as an office of a bank physically separated from its
main office, with common service and functions, and corporately part of the
bank and a branch office of a bank includes office, unit, station, facility,
terminal, space or receptacle at a fixed location other than a principal office;
(iv) that a distillery does not qualify as a branch office; (v) that the present
suit is in the nature of a quia timet action and the Division Bench of this
Court in Allied Blenders & Distillers Pvt. Ltd. Vs. R.K. Distilleries Pvt. Ltd.
2017 SCC OnLine Del 7224 has held that if there is a reasonable and
credible apprehension that the impugned product would also be launched and
sold in New Delhi, it constitutes a cause of action for instituting a suit in the
nature of a quia timet action and the cause of action would accrue at Delhi;
(v) that the Division Bench in Allied Blenders & Distillers Pvt. Ltd. supra
has further held that considerations with regard to territorial jurisdiction in
the context of Order VII Rule 10 are entirely different from those in the
context of an application under Order XXXIX Rules 1 and 2 of the CPC; (vi)
in the backdrop of Order VII Rule 10 of the CPC, it is only the averments
contained in the plaint that have to be seen; (vii) the averments contained in
the plaint in the present suit disclose this Court to be having territorial
jurisdiction and the plaint cannot be ordered to be returned on the ground of
this Court not having territorial jurisdiction at this stage; (viii) mere denial
by the applicant / defendant of not intending to launch its product in Delhi
cannot defeat a quia timet action; reliance in this regard is placed on the dicta
of the Division Bench of this Court in Teva Pharmaceutical Industries Ltd.
Vs. Natco Pharma Ltd. (2014) 210 DLT 591.
23. The senior counsel for the applicant / defendant in rejoinder has
contended that there can be no distillery without a branch office.
24. Merit is found in the contentions aforesaid of the counsel for the
plaintiff also, to defeat this application for return / rejection of the plaint.
25. I may add, that while the pleading in the application is of the distillery
of the defendant at Sonipat, Haryana, the pleading in the plaint is of the
distillery of the plaintiff at Ambala, Haryana.
26. The senior counsel for the applicant / defendant has not clarified
whether according to the applicant / defendant, the applicant / defendant can
be sued under Section 20 of the CPC only at Sonipat, Haryana. Applying
Section 134 of the Trade Marks Act and in accordance with the dicta of the
Division Bench of this Court in Ultra Home Construction Pvt. Ltd. Vs.
Purushottam Kumar Chaubey (2016) 227 DLT 320, the plaintiff, having its
registered office at Delhi and distillery at Ambala (if treated to be a
subordinate office), would be entitled to sue the defendant at Ambala also
and the defendant cannot compel the plaintiff to sue the defendant in the
Courts at Sonipat, Haryana only.
27. I am, therefore, of the view that no ground for return / rejection of the
plaint is made out.
28. The application is dismissed.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 15, 2018/„gsr‟..
