Samriddhi Rice Mill Private Limited vs The Controller General Of Patents
2025 Latest Caselaw 5334 Jhar

Jharkhand High Court

Samriddhi Rice Mill Private Limited vs The Controller General Of Patents on 30 April, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                 IN THE HIGH COURT OF JHARKHAND, RANCHI
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Misc. Appeal No. 316 of 2024

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Samriddhi Rice Mill Private Limited ...... Appellant(s)

-- Versus --

1.The Controller General of Patents, Designs and Trade Marks, and Others ...... .... ... Respondent(s)

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellant(s) :- Mr. Rajeev Kumar Jain, Advocate Mr. Vipul Poddar, Advocate Mr. Yamini Mahawar, Advocate For the Respondent No.6 :- Mr. Vibhor Mayank, Advocate Mr. Shivam Kumar, Advocate

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08/30.04.2025 Heard Mr. Rajeev Kumar Jain, the learned counsel appearing on behalf of

the appellant as well as Mr. Vibhor Mayank, the learned counsel appearing on

behalf of the respondent no.6.

2. At the outset, Mr. Vibhor Mayank, the learned counsel appearing on

behalf of the respondent no.6 has raised preliminary objection with regard to

maintainability of this appeal before Jharkhand High Court. In view of that, the

Court has called upon him to argue the case with regard to maintainability of

this appeal before this Court.

3. Mr. Mayank, the learned counsel for the respondent no.6 submits that

this appeal is not maintainable before this Court in view of that fact that it is

preferred under section 72(2) of Copy Rights Act, 1957 and the order passed by

the Deputy Registrar of Copy Rights-respondent no.3 is under challenge and the

Office of the Deputy Registrar, Copy Rights is situated at New Delhi. He submits

that in view of that only the Delhi High Court is having the jurisdiction. He

further elaborates his argument by way of submitting that the appeal against

the orders of the Registrar of Copy Rights in light of Section 72 of the Copy

Rights Act, 1957 will lie to the High Court and in view of that fact that the Office

of the Registrar is at Delhi and only Delhi High Court is having the jurisdiction.

He also draws the attention of the Court to the fact that the Copy Rights Act,

1957 has been further amended in the year 2021 and it has effected with effect

from 04.04.2021. He submits that in the old Act, before the amendment, the

appeal will lie to the High Court within whose jurisdiction the appellant actually

and voluntarily resides or carrying out the business or purposely works for gain.

He submits in view of that the Jharkhand High Court sitting as appellate Court

have got no jurisdiction. According to him, this is not the case under Article 226

of the Constitution of India and exceptions are there. According to him, the

statute speaks that the appeal will lie before the Delhi High Court and to

buttress his argument, he relied in the case of Ambica Industries v.

Commissioner of Central Excise, (2007) 6 SCC 769 and he refers to the

paragraph nos.13 and 38 of the said judgment which are given below:

13. The Tribunal, as noticed hereinbefore, exercises jurisdiction over all the three States. In all the three States there are High Courts. In the event, the aggrieved person is treated to be the dominus litis, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction. It will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or courts or tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. An assessee, affected by an order of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay.

38. We have noticed hereinbefore that if the decision of the High Court in the aforementioned question is taken to its logical conclusion, the same would lead to a great anomaly. It would also give rise to the problem of forum shopping. We may notice some examples to show that the determination of the

appellate forum based upon the situs of the tribunal would lead to an anomalous result. For example, an assessee affected by an assessment order in Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it which may be contrary to judgments of the High Court of Bombay. This cannot be allowed. (See Suresh Desai and Associates v. CIT [(1998) 230 ITR 912 : (1998) 71 DLT 772 (Del)] , ITR at pp. 915-17 and CCE v. Technological Institute of Textile [(1998) 76 DLT 862 (DB)] .)

4. Relying on this judgment, he submits that the High Court is having got

no territorial jurisdiction. He further submits that the Office of the Deputy

Registrar, Copy Rights, is a quasi-judicial authority and in view of that also he is

exercising original jurisdiction and in view of that only the Delhi High Court is

having the jurisdiction. On this ground, he submits that this Court is having no

jurisdiction to entertain this appeal.

5. Mr. Mayank, the learned counsel appearing on behalf of the respondent

no.6 further submits that in light of the sub-section 2 of section 72 of the said

Act, the appeal will only lie before the Division Bench of the concerned High

Court. He further submits in light of that, the Jharkhand High Court Rules, 2001

has incorporated Rule 384 which says that the appeal under section 72(2) of

the Copy Rights Act shall be heard by a Bench comprising not less than two

Judges. According to him, Tribunal Reforms Act, 2021 is a disabling provision

and not an enabling provision and that aspect has been considered by the Delhi

High Court in the case of Hershey Company v. Dilip Kumar Bacha and

Another, 2024 SCC Online Del 814. In light of that, he submits that if the

jurisdiction of the High Court is there, then it is required to be heard by the

Division Bench. On this ground, he submits that this appeal may kindly be

dismissed on the ground of jurisdiction.

6. Mr. Rajeev Kumar Jain, the learned counsel appearing on behalf of the

appellant in light of the submission of Mr. Mayank, the learned counsel

appearing on behalf of the respondent no.6, submits that this Court is having

the jurisdiction to entertain this appeal and this appeal has been filed before

this Court with all responsibility. He draws the attention of the Court to Section

72 of the Copy Rights Act, 1957, and submits that the provision of appeal is

there before the High Court. He further submits that in the said Section of the

Act, it is not specified that only the Delhi High Court is having the jurisdiction to

entertain the appeal. He further submits that if the argument of the learned

counsel appearing for the respondent no.6 is accepted, only the Delhi High

Court will be flooded with the cases arising out of the Copy Rights Act and in

the other High Courts the cases will not be filed. He further submits that he is

appearing before the Calcutta High Court in one of the appeal wherein the

challenge is against the order of the Registrar of Copy Rights Act situated at

Delhi and that appeal is being heard. However, this issue is not there of

jurisdiction. He further submits that the business is being done in the territory

of Jharkhand of rice mill and respondent no.6's office is also situated at Ranchi

and in view of that, the High Court of Jharkhand is having further jurisdiction.

He submits that in light of the earlier Act, the jurisdiction was made to the

Courts where the appellant actually or voluntarily resides or carrying out his

business or purposely works for gain and in view of that additional Forum

provided under the earlier Act. He further submits that, however, in the new

Act, the appeal will lie before the High Court. He submits that in view of that

new Act, the appellant is not having liberty to file appeal in light of the earlier

Act at a place where the appellant is doing business or residing or working for

gain. He submits that in light of the business and the office of the respondent

no.6, which is in Jharkhand, only the Jharkhand High Court is having the

jurisdiction to entertain the appeal and to buttress his such argument, he relied

in the case of Sumitra Nandan Gupta v. Copyright Board, 1970 0

Supreme (Del.) 103 and refers to paragraph nos.11 and 12 of the said

judgment which are given below:

(11) THE petitioner and respondents 3 and 4 are residents of District Jhansi in Uttar Pradesh. The copy of the impugned

order shows that the hearing of the case, when the impugned order was made, took place in Agra in April, 1966. As the petitioner felt aggrieved with the impugned order, he filed a revision petition in Allahabad High Court and the same, as mentioned in Para- 26 of the writ petition, was dismissed by that Court with the observations reproduced earlier. The observations show that the Court went into the matter and came to the conclusion that it should not interfere with the impugned order as the petitioner had an alternative remedy by way of appeal under Section 72 of the Copyright Act. As the matter has already been dealt with by the Allahabad High Court and the Court has expressed the opinion that the impugned order should not be interfered with except in appeal under Section 72 of the Act, it would, in our opinion, be contrary to all notions of comity of Courts if this Court were to again deal with that matter. In case such a course is adopted, it may result in conflict of decisions of two Courts of competent jurisdiction. Such an eventuality cannot be viewed with equanimity and must be avoided at all costs. It would indeed result in abuse of the process of the Court. The petitioner, in our opinion, cannot be allowed to by-pass the order of Allahabad High Court by resort to these writ proceedings. In Chandi Prasad Chokhani v. State of Bihar, AIR 1961 SC 1708, S. K. Das, J. , speaking for the Court, observed that save in exceptional and special circumstances the Court would not exercise its power under Article 136 in such a way as to by-pass the High Court and ignore the latter s decision which had become final and binding by entertaining an appeal directly from the order of the Board of Revenue. Such exercise of power, it was further observed, would be particularly inadvisable where the result may be a conflict of dicisions of two Courts of competent jurisdiction. A case much more to the point is that of Shanker Ramchandra Abhvankar v.

Krishnaji Dattatraya Bapat, AIR 1970 SC 1, The appellant in that case was the owner of a house, a part of which was occupied by the respondent as a tenant. The respondent was transferred to another town where he was allotted suitable residential accommodation. His son, however, stayed on in Poona as he was studying there. The appellant filed a suit under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (57 of 1947), for possession of the suit premises, inter alia, on the ground that the respondent had acquired suitable accommodation elsewhere. The position taken by the respondent was that his son was required to stay on in Poona and for that reason it could not be said that he had got a suitable residence at Wai. The trial Court held that only a part of the premises which were required by son should be vacated. Both the parties filed appeals. The appellate Court took the view that the Court was not empowered to bifurcate the premises. All the same it affirmed the decree of the trial Court as in its opinion the order made by that Court was equitable. The respondent

preferred TO a revision petition under Section 115 of the Code of Civil Procedure to the High Court. The learned Single Judge, who heard the revision petition, dismissed it as he was not satisfied that the appellate Court had acted in the exercise of its jurisdiction illegally or with material irregularity. The respondent then moved a petition under Articles 226 and 227 of the Constitution challenging the same order of the appellate Court. A Division Bench of Bombay High Court held that in spite of the dismissal of the revision petition there could be interference under Articles 226 and 227 of the Constitution on a proper case being made out. After going into the merits the Bench came to the conclusion that the respondent had not acquired an alternative suitable residence. The orders of the Courts below were accordingly set aside. When the matter came up before the Supreme Court by special leave, Grover, J. , speaking for the Court, dealt with the question as to whether the orders of the Courts below had merged in the order made by the High Court in revision and observed:

"now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically andfundamentally it is the appellate, jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal. "

( 12 ) VIEW was also expressed that the course followed by the High Court would lead to conflict of decisions of the same Court and it was observed :

"even on the assumption that the order of the appellate Court had not merged in the order of the single judge who had disposed of the revision petiton we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of procedings in respect of the same order of the Subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions. "

7. Relying on the above judgment, he submits that if the two High Courts

are having the jurisdiction, the appeal can be maintained in either of the High

Courts.

8. On the same line, he further relied in the case of Calcutta Gujarati

Education Society and Another v. Regional provident Fund

Commissioner and Others, (2020) 19 SCC 380 and refers to paragraph

nos.7 and 10 of the said judgment, which are given below:

7. In Ambica Industries case [Ambica Industries v. CCE, (2007) 6 SCC 769] , the consideration in the appeal was with regard to the determination of the situs of the High Court in which the appeal would lie under Section 35-G of the Central Excise Act, 1944. The issue therein was with regard to the maintainability or otherwise of the writ petition before the High Court at New Delhi merely because the Central Excise and Service Tax Appellate Tribunal ("Cestat") is situated at New Delhi. While considering the said question, this Court has arrived at the conclusion that when such tribunals exercise its jurisdiction in respect of the issues arising from the different parts of the country, the territorial jurisdiction for filing the writ petition at the place where the tribunal is situated would not be justified. It has been held therein that the writ petition would be maintainable at the place where the original authority/court had exercised the jurisdiction.

10. If the said enunciation of law is kept in view, as already taken note, in the instant case the original order passed is by the Assistant Provident Fund Commissioner situate at Calcutta, West Bengal and the Calcutta High Court can exercise territorial jurisdiction. In that light, we are of the view that the Calcutta High Court was not justified in its decision to decline to entertain the writ petition.

9. Relying on the above judgment, he submits that the Ambica Industries

v. Commissioner of Central Excise(supra) was further considered by the

Hon'ble Supreme Court in this case on which reliance has been placed by the

learned counsel appearing on behalf of the respondent no.6 and considering

this aspect, the order, whereby the High Court has not entertained the petition,

has been set-aside by the Hon'ble Supreme Court and it was held that the

Calcutta High Court is having the jurisdiction. On this ground, he submits that

this Court is having the jurisdiction, and as such, the appeal has been filed

before this Court.

10. So far as the argument with regard to the appeal to be heard before the

Division Bench is concerned, he submits that in view of the new Act, the appeal

will lie before the learned Single Judge and further the provision is made that

against the judgment of the learned Single Judge, the appeal will lie to the

Bench of High Court. The further appeal shall lie to a Bench of the High Court,

meaning thereby, the Division Bench. He submits that it is the discretion of the

learned Single Judge that if it comes to the mind of the learned Single Judge

that the matter is required to be heard by the Division Bench, that discretion

can be exercised in light of the proviso of Sub section 2 of the Section 72 of the

Copy Rights Act. He submits that stage will come once the Court will hear the

matter on merit and in course of the argument, if such a situation appears into

the mind of the Court, then that course can be adopted by the learned Single

Judge and in view of that, he submits that the appeal to be maintained before

the learned Single Judge and accordingly this Court is competent to hear the

matter. He submits that in view of that, the jurisdictional issue raised by the

learned counsel appearing on behalf of the respondent no.6 may kindly be

rejected.

11. In reply to the above argument of Mr. Jain, the learned counsel for the

appellant, Mr. Mayank, the learned counsel appearing on behalf of the

respondent no.6, submits that so far as the judgment relied by the learned

counsel for the appellant in the case of Calcutta Gujarati Education Society

and Another v. Regional provident Fund Commissioner and

Others(supra) is concerned, it is distinguishable in the facts of the present

case. He submits in that case, the original authority was situated at Calcutta

and the appellate order was not entertained and in this background, the

Hon'ble Supreme Court has held that the Calcutta High Court is having the

jurisdiction and it was under the Article 226 as well as Article 227 of the

Constitution of India. He further submits that in light of the Reference made by

the Delhi High Court in the case of Hershey Company v. Dilip Kumar Bacha

and Another(supra) this Court can await for the judgment of the Larger

Bench of Delhi High Court.

12. In view of above submission of the learned counsels appearing on behalf

of the respondent no.6 as well as the appellant, the Court has gone through the

materials on record including the provision of the old Copy Rights Act as well as

the new Copy Rights Act.

13. It is an admitted position that the order passed by the Deputy Registrar

of Copy Rights Act situated at Delhi is under challenge in the present appeal

under sub section 2 of the Section 72 of the Copy Rights Act, 1957. The Court

finds that the business and the place of office and the place of residence of the

appellant is in the State of Jharkhand as well as the respondent no.6 is in the

State of Jharkhand.

14. The unamended Section 72 of the Copy Rights Act, 1957 stipulates as

under:

72. Appeals against orders of Registrar of Copyrights and 1[Appellate Bo ard].--(1) Any person aggrieved by any final decision or order of the Registrar of Copyrights may, within three months from the date of the order or decision, appeal to the 1[Appellate Board].

(2) Any person aggrieved by any final decision

or order of the [Appellate Board], not being a decision or order made in an appeal under sub-section (1), may, within three months from the date of such decision or order, appeal to the High Court within whose jurisdiction the appellant actually and voluntarily resides or carries on business or personally works for gain:

Provided that no such appeal shall lie against a

decision of the [Appellate Board] under Section 6.

(3) In calculating the period of three months provided for an appeal under this section, the time taken in granting a certified copy of the order or record of the decision appealed against shall be excluded.

15. For correct appreciation of the issue in question, the provision made

under Section 72 of the said Act which has been amended with effect from

04.04.2021 is being incorporated herein:

72. Appeals against orders of Registrar of Copyrights.-- (1)Any person aggrieved by any final decision or order of the Registrar of Copyrights may, within three months from the date of the order or decision, appeal to the High Court.

(2) Every such appeal shall be heard by a Single Judge of the High Court:

Provided that any such Judge may, if he so thinks fit, refer the appeal at any stage of the proceeding to a Bench of the High Court. (3) Where an appeal is heard by a Single Judge, a further appeal shall lie to a Bench of the High Court within three months from the date of decision or order of the Single Judge.

(4) In calculating the period of three months provided for an appeal under this section, the time taken in granting a certified copy of the order or record of the decision appealed against shall be excluded.]

16. In view of the above two provisions, the Court finds that in the

unamended Act, there was additional right of the appeal to the appellant to file

the appeal to the High Court where the appellant is voluntarily residing or

carrying out business or personally works for gain, however, that has been

withdrawn in the amended Act and it has been simply said that the appeal will

lie before the High Court. By way of this amended Act, the restriction is not

made that only the Delhi High Court is having the jurisdiction as the Registrar of

Copy Rights is stationed at New Delhi. Thus, the intention of the statute was

that the order of the Registrar, Copy Rights can be entertained by the other

High Court subject to the condition that the Court is having the jurisdiction.

Since the appellant as well as the respondent no.6 both are doing the business

in the State of Jharkhand and their offices are also situated in the State of

Jharkhand and it cannot be said that the Jharkhand High Court is not having

the jurisdiction to entertain the appeal and this aspect of the matter has been

decided by the Hon'ble Supreme Court in the case of Calcutta Gujarati

Education Society and Another v. Regional provident Fund

Commissioner and Others(supra) and that case was considered under

Article 226 as well as 227 of the Constitution of India and in that case the case

of Ambica Industries v. Commissioner of Central Excise was also

considered upon which reliance has been placed by the learned counsel

appearing on behalf of the respondent no.6. Further under section 6 of the

Copy Rights Act, 1957 the certain disputes to be decided by the Commercial

Courts and in that section further it is not restricted that it will be entertained

by the Commercial Courts, meaning thereby, that it can be before any

Commercial Court having the jurisdiction and that will be in the facts and the

cause of action shown by the aggrieved party before the Commercial Court and

that will depend upon the circumstances of each case.

17. Admittedly, so far as the present appeal is concerned, the appellant and

the respondent no.6 both are doing business in the State of Jharkhand as well

as are having the offices in the State of Jharkhand. So far as the argument of

Mr. Mayank, the learned counsel appearing on behalf of the respondent no.6 is

concerned of that the appeal to be heard by the Division Bench or not, this

Court finds that in light of proviso of sub section 2 of Section 72 of the Copy

Rights Act, 1957, the Court finds that the appeal is required to be heard by the

Single Judge of the High Court provided that any such Judge if may think so

can refer the appeal to the Division Bench and that can be at any stage of the

proceeding. In view of that, admittedly, the appeal can be heard by the learned

Single Judge, however, if in course of the argument, if the learned Single Judge

comes to the conclusion that the issue in question is required to be heard by

the Division Bench then the Reference may be made to the Division Bench at

any stage and that stage will come once the learned Single Judge starts hearing

the appeal on merit. Otherwise, that provision would not have been there in the

statute. Further in the light of sub section 3 of Section 72 of the Copy Rights

Act, 1957, it further provides that against the order of learned Single Judge the

further appeal shall lie to a Bench of the High Court, meaning thereby, that the

further appeal is to be made before the Larger Bench of the same High Court

against the order of the learned Single Judge and in view of that it cannot be

said that at the initial stage itself without formulating the opinion by the learned

Single Judge, it should be referred to the Division Bench. The argument of Mr.

Mayank, the learned counsel appearing on behalf of the respondent no.6 with

regard to the Jharkhand High Court Rules, 2001, particularly, Rule 384 of the

Jharkhand High Court Rules, 2001 is concerned, is also not acceptable in view

of the fact that the Jharkhand High Court Rules, 2001 has been effected with

effect from the year 2001 and it was before the amended Act which has taken

effect in the year 2020 and after the amendment of the amended Act, there is

no further amendment in the Jharkhand High Court Rules, 2001 and it is further

well settled that the statute will prevail over the rules. In view of that, that

argument is also not being accepted by the Court. However, the Reference to

the Division Bench in light of the above discussion, can be made in course of

the hearing if the Court finds that it requires to be referred to the Division

Bench.

18. So far as the judgment relied by Mr. Mayank, the learned counsel

appearing on behalf of the respondent no.6 is concerned in the case of

Hershey Company v. Dilip Kumar Bacha(supra) of the Delhi High Court is

concerned, the Court finds that the consideration in that case was of Section 57

of the Trade Marks Act, 1999 and Section 91 of the said Act is paramateria of

section 72 of the Copy Rights Act, 1957 and that section 91 of the said Act was

not in consideration before the Delhi High Court in the said case. However, on

certain issues, if the judgment in the case of Girdhari Lal Gupta v. K.

Kalyanchand Jain and Company, 1977 SCC Online Delhi 146 was

referred, the fact remain that the issue in question in that case is different. It is

further well settled that merely the matter is referred to a Larger Bench and it is

still pending, the High Court is not required to await the judgment of the said

Reference by the Larger Bench and on the existing law, on the date of hearing,

the High Court is required to decide the cases. A reference may be made to the

case of Rajnish Kumar Rai v. Union of India, reported in (2023) 14 SCC

782.

19. In view of the aforesaid facts, reasons and the analysis, this Court finds

that this Court is having the jurisdiction to entertain the appeal. As such, the

argument advanced by the learned counsel appearing on behalf of the

respondent no.6 is, hereby, negated, and it is answered that the appeal arising

out of the Copy Rights Act, 1957 under section 72 thereof, is maintainable

before this Court.

20. Since, the maintainability aspect of the matter has been decided today,

let this matter be placed, with consent of the parties, on 11.06.2025 under the

appropriate heading.

( Sanjay Kumar Dwivedi, J.)

SI/ A.F.R.