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IN THE HIGH COURT OF BOMBAY
F.I. Rebello, J.
M/s. ARTE INDIANA ... Plaintiffs.
Versus
M/s. P. Mittulaul Lalah Sons ... Defendants.
Miscllenous Petition Lodging No. 446 of 1999 in Suit No. of 1999, decided on 22-3-1999.
Advocates appeared :
Virendra V. Tulzapurkar with S. Shah Hemang Engineer i/by Gordhandas Fozdar for plaintiffs/petitioners.
H.W. Kane with Rahul Kadam i/by H.W. Kane, for defendant No. 1.
Rahul Chitnis i/by A.V. Gopalkrishnan, for defendant No. 2.
Section 62(2)-Letters Patent, Clauses 11, 12 and 14-Leave to sue Territorial jurisdiction of this Court Infringement of copyright-No part of cause of action arose within jurisdiction of this Court-Leave sought for cannot be granted.-Until the Copyright Act was enacted, the right to sue as conferred by sub-section (2) of Section 62 was not a part of the ordinary original jurisdiction of this Court. Plaintiffs therefore except for the provisions of the Act could not have sued for infringement of copyright by virtue of the Letters Patent where they resided or carried on business. It is only by virtue of the special enactment that a right in a copyright has been created and the plaintiff can maintain a suit before this Court. In other words the right to sue is neither by virtue of clause 11 or 12 of the Letters Patent but by virtue of the special enactment. If that be so, can it be said that this was a part of the ordinary original jurisdiction as provided for by the Letters Patent. If the right to sue has been conferred by an Act of Parliament and it is because of conferring of such right that a suit can be maintained, then it cannot be said that the right to sue is pursuant to the ordinary original jurisdiction of this Court as conferred by the Letter Patent. This must follow from the plain and literal meaning of the clause. The expression ordinary jurisdiction has been used to distinguish it from the extraordinary jurisdiction conferred by clause 13 of the Letters Patent. Therefore, leave to sue, for being granted at least a part of the cause of action must fall within the territorial jurisdiction of this Court. Section 62(2) of the Copyright Act is not a part of the expression cause of action, but is a right conferred by statute on a plaintiff to maintain a suit where he resides or carries on business. The submission on behalf of the defendant No. 1 will, therefore have to be accepted that as no part of the cause of action having arisen within the territorial jurisdiction of this Court leave sought for cannot be granted.
Letters Patent
Clauses 11, 12 and 14-See The Copyright Act, 1957-Section 62 (2).
Clauses 12, 14 and Copyright Act (14 of 1957), Section 62 (2)-Infringement of copyright-Suits pertaining to-Such suits are within the ordinary jurisdiction of Bombay High Court-Suit filed complaining violation of copyright under Copyright Act as also infringement of trademark and passing off-Appellant-Plaintiff having its office at Mumbai and carrying on business within the jurisdiction of Bombay High Court-Respondent No. I-defendant carrying on business at Chennai-Appellant-Plaintiff applying under clause 14 seeking leave of the Court to combine the cause of action relating to copyright and infringement and passing off-Suit was one within the purview of ordinary jurisdiction and not Extraordinary jurisdiction as conferred by clause 13-Leave granted under clause 14.
Clause 14-Copyright Act 1957, Section 62 (2)-Jurisdiction of High Court-Infringement of copyright-Joinder of cause of action Suit against infringement-Held, suit fell within purview of ordinary jurisdiction and not extraordinary jurisdiction.-A bare reading of the aforesaid clause shows that the accrual of the cause of action within the territorial jurisdiction of this Court is not contemplated to permit joinder of causes of action. Clause 14 only contemplates that this Court shall have original jurisdiction in respect of one of such causes of action to permit two separate causes of action being combined together in one suit.
Clause 14-Suit against infringement of copyright-Jurisdiction of High Court-Held, suit fell within purview of ordinary jurisdiction and not extra ordinary jurisdiction of High Court.
Clause 14-Grant of leave under Clause 14-Suit regarding infringement of trademark and passing off-Leave sought to combine causes of action relating to both matters-Plaintiff having office at Mumbai while defendant carrying an business at Chennai-Both parties being affluent having business of cores-No hardship of defendant-Held, Leave granted to plaintiff/appellant.-It is evident that both the parties are very affluent. The respondent claims to have exported goods worth Rs. 2 crores in the containers complained of in the suit. lt is said to be so doing since 1966. As already observed one of the objects for enacting clause (14) was to avoid multiplicity of proceedings, though it may be a different matter if, on the facts and circumstances of a particular case, the Court may decline leave considering undue hardship to the respondent or other such similar ground. On facts, no such ground has been made out by the respondent in the present case.
In view of the aforesaid conclusion, setting aside the impugned order Court allowed the Appeal and grant to the appellant, the leave sought for under clause (14) of the Letters Patent.
Clause 14-Provision contemplates that the Bombay High Court should have original jurisdiction in respect of one of the causes of action to permit two separate causes of action being combined together in one suit-Provision does not contemplate accrual of cause of action within territorial jurisdiction of Bombay High Court to permit joinder of causes of action.-Clause 14 of the Letters Patent (Bom) shows that the accrual of the cause of action within the territorial jurisdiction of the Bombay High Court is not contemplated to permit joinder of causes of action. Clause 14 only contemplates that the Bombay High Court shall have original jurisdiction in respect of one of such causes of action to permit two separate causes of action being combined together in one suit. AIR 1987 SC 33, Relied on.
2.Clause 14 reads as under :-
"14. And we do further ordain that where plaintiff has several causes of action against a defendant, such causes of action not being for land or other immovable property, and the said High Court shall have original jurisdiction in respect of one of such causes of action, it shall be lawful for the said High Court to call on the defendant to show cause why the several causes of action should not be joined together in one suit, and to make such order for trial of the same as to the said High Court shall seem fit."
From the facts on record it is an admitted position that there has been no infringement of the Trade and Merchandise Marks Act, in respect of the Trade Mark which the plaintiffs claim within the territorial jurisdiction of this Court. The contention of the plaintiffs, however, is that sub-section (2) of section 62 of the Copyright Act, 1957 permits the plaintiffs in case of infringement of Copyright Act, to sue at the place where the plaintiffs actually and voluntarily resides or carries on business or personally work for gain. The plaintiffs have their office and carry on business within the jurisdiction of this Court. The plaintiffs have approached this Court on the ground that defendant No. 1 is marketing certain products in violation of its Copyright under the Copyright Act as also Trade Mark obtained by them under the Trade and Merchandise Marks Act. The defendant No. 1 has its place of business at Chennai. The products are manufactured and exported from Chennai to Kuwait wherein the defendant No. 2 carries on business and according to the plaintiffs where the products are sold by the defendant No. 2. The printing and packaging of products is also done at Chennai. It is, therefore, contended that once the plaintiffs by virtue of sub-section (2) of section 62 of the Copyright Act has a right to sue, by virtue of Clause 14 of the Letters Patent they be permitted to sue in respect of other causes of action also. Learned Counsel for that purpose has relied on the judgment of the Single Judge of this Court in the case of (Burroughs Wellcome (India) Ltd. v. G.K. Sharma King Scientific Research Centre)1, 1989 I.P.L.R. 60 and unreported judgment of the Division Bench of this Court dated 10th June, 1994, in the case of (Gold Seal Engineering Products Pvt. Ltd. and ors. v. Hindustan Manufacturers Ors.)2 It is further submitted that these two Judgments will concluded the issue. In the case of Gold Seal Engineering Products Pvt. Ltd. (supra) the learned Single Judge had rejected the application for leave though the Court had come to the conclusion that in so far as the Copyright Act is concerned this Court would have had jurisdiction. Reversing the Judgment, the Division Bench held that once the Court came to the conclusion the plaintiffs could sue before this Court under the Copyright Act, in order to avoid multiplicity of proceedings and also hardship and cost of litigation, in the ordinary course leave ought to have been granted and consequently granted leave to sue under Clause 14 of the Letters Patent. It may be mentioned that respondent No. 3 was carrying on business in Mumbai and selling goods manufactured by respondent Nos. 1 and 2. Similarly, in the case of Burroughs Wellcome (India) Ltd. (supra) the defendants were apart from other places carrying on business within the jurisdiction of this Court.
3.On the other hand on behalf of the defendant No. 1 it is contended that a close reading of Clause 14 would indicate that at least one of the causes of action must have arisen within the Ordinary Original Jurisdiction of this Court. It is pointed out that the Copyright Act is a special Act. The right to sue has been conferred by virtue of sub-section (2) of section 62 of the Copyright Act. This right to sue therefore is not in the ordinary course of the Original Jurisdiction
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