Soumen Sen, J.

The plaintiff has filed this application for obtaining leave under Clause 14 of the Letters Patent.

The plaintiff has instituted the suit on 20th January, 2009.

In the suit, the plaintiff has prayed decree of permanent injunction for restraining the defendants from infringing or using the trademark PILOT and/or PILOT NUMBR ONE. The plaintiff has also prayed for permanent injunction restraining the defendant from selling and/or passing off or causing to pass off the products o the defendant bearing the impugned mark PILOT as and for those of the plaintiff.

At the time of institution of the suit, the plaintiff did not pray leave under Clause 12 of the Letters Patent.

The plaintiff contends that this Hon’ble Court has jurisdiction to entertain the instant suit in respect of the plaintiff’s infringement of trademark PILOT by virtue of Section 134(2) of the Trade Marks Act, 1999 as the plaintiff’s registered office is situated within the jurisdiction of this Hon’ble Court. The plaintiff contends that the defendant in his written statement filed sometimes in April, 2010 purported to question the territorial jurisdiction of this Hon’ble Court to entertain the instant suit in respect of the plaintiff’s claim for passing off. The defendant has alleged that no part of the cause of action in respect of the plaintiffs’ claim for passing off has arisen within the jurisdiction of this Hon’ble Court.

Mr. S.N. Mookherjee, the learned Senior Counsel appearing on behalf of the plaintiff submits that due to oversight, the plaintiff had omitted to pray for leave under Clause 14 of the Letters Patent at the time of presenting and/or filing the plaint although necessary pleadings in relation thereto are present and on the existing pleading the plaintiff is entitled to claim leave under Clause 14 of the Letters Patent. Further, due to the pendency of the interlocutory proceedings in the instant suit, no steps could be taken to apply for such leave. It is argued that it is settled position that leave under Clause 14 of the Letters Patent can be granted by this Hon’ble Court at any time before the commencement of trial in a suit. The learned Senior Counsel has referred to the interlocutory petition filed by the defendant for stay of further proceedings in which a prayer was made for expunging and/or deleting from the plaint the plaintiffs in respect of the passing off.

Mr. Mookherjee submits that the pendency of the application for registration of the mark cannot and should not be a ground in refusing to proceed with the suit and decide the question relating to passing off. It is submitted that the said application being G.A. No.2031 of 2009 was dismissed with an observation that the attack on the causes of action relating to passing off does not have to be decided at this stage. Mr. Mookherjee has also referred to the observations made by the learned Single Judge in dealing with the said application for stay of suit which reads as follows:-

“The defendant’s challenge to the cause of action in passing-off is merely on the ground that if the allegations in support of the relief of passing-off are culled out from the plaint relating to this suit and were to be seen to be a separate plaint altogether, a suit on the basis of such plaint could not have been entertained by this Court. Even if all the averments in support of the claim for infringement were obliterated from the plaint and the suit in so far as it relates to passing-off assessed, notwithstanding there being no averment in the plaint for the independent cause of action relating to passing-off being carried to this Court, clause 14 of the Letters Patent confers jurisdiction on this Court to consider, at any stage of the suit, as to whether such cause of action could have been joined with the cause of action for infringement. Since it is not in dispute that this Court had the authority to receive the claim for infringement, the parties are left to fight another day on this score.