The main legal point established in the judgment is the interpretation of the provisions of territorial jurisdiction under the Copyright Act, 1957, Trade Marks Act, and Civil Procedure Code.

( 1 ) THIS APPLICATION ON BEHALF OF DEFENDANT UNDER order VII 11 CPC SEEKS REJECTION OF THE PLAINT ON the PLEA OF WANT OF TERRITORIAL JURISDICTION OF THIS court.

( 2 ) THE LEARNED COUNSEL FOR THE DEFENDANT HAS RAISED objections BASED ON TERRITORIAL JURISDICTION BY submitting THAT SECTION 62 (2) OF THE COPYRIGHT ACT, 1957 read WITH SECTION 134 (2) OF THE TRADE MARKS ACT AND section 20 (2) OF THE CIVIL PROCEDURE CODE (HEREINAFTER referred TO AS THE `cr. ACT , `t. M. ACT AND THE `code ) indicate THE PLACE WHERE THE PLAINTIFF carries ON business WHICH IS THE COMMON DETERMINATIVE FACTOR IN all THESE SECTIONS. HE HAS FURTHER SUBMITTED THAT THE expression "carries ON BUSINESS" IS A SINE QUA NON FOR attracting THE TERRITORIAL JURISDICTION OF THIS COURT under SECTION 62 (2) OF CR ACT AND SECTION 134 (2) OF THE t. M. ACT WHICH PROPOSITION THE LEARNED COUNSEL FOR THE plaintiff DOES NOT DISPUTE AT ALL.

( 3 ) THE PRINCIPAL SUBMISSION, ADVANCED BY THE defendant s COUNSEL IS BASED UPON THE JUDGMENT OF THE hon ble SUPREME COURT IN EXPHAR SA and ANOTHER VS EUPHARMA laboratories LTD. and ANOTHER (2004) 3 SCC 688. THE relevant PORTIONS OF THE SAID JUDGMENT WHICH DEALT WITH the EFFECT OF THE SECTION 62 (2) OF THE CR. ACT READS AS follows:-

" 9. BESIDES, WHEN AN OBJECTION TO JURISDICTION IS raised BY WAY OF DEMURRER AND NOT AT THE TRIAL, THE objection MUST PROCEED ON THE BASIS THAT THE FACTS AS pleaded BY THE INITIATOR OF THE IMPUGNED PROCEEDINGS ARE true. THE SUBMISSION IN ORDER TO SUCCEED MUST SHOW THAT granted THOSE FACTS THE COURT DOES NOT HAVE JURISDICTION as A MATTER OF LAW. IN REJECTING ON THE GROUND OF jurisdiction, THE DIVISION BENCH SHOULD HAVE TAKEN THE allegations CONTAINED IN THE PLAINT TO BE CORRECT. HOWEVER, THE DIVISION BENCH EXAMINED THE WRITTEN statement FILED BY THE RESPONDENTS IN WHICH IT WAS claimed THAT THE GOODS WERE NOT AT ALL SOLD WITHIN THE territorial JURISDICTION OF THE DELHI HIGH COURT AND ALSO that RESPONDENT 2 DID NOT CARRY ON BUSINESS WITHIN THE objections TO THESE FACTUAL STATEMENTS BY THE respondents, SURPRISINGLY THE DIVISION BENCH SAID: "admittedly, THE GOODS ARE BEING TRADED OUTSIDE INDIA AND not BEING TRADED IN INDIA AND AS SUCH THERE IS NO question OF INFRINGEMENT OF TRADE MARK WITHIN THE territorial LIMITS OF ANY COURT IN INDIA WHAT TO SAY OF delhi. "

10. APART FROM THE EX FACIE CONTRADICTION OF THIS statement IN THE JUDGMENT ITSELF, THE DIVISION BENCH erred IN GOING BEYOND THE STATEMENTS CONTAINED IN THE plaint.

11. THE DIVISION BENCH HAS ALSO ERRED IN ITS CONSTRUCTION of SECTION 62 OF THE COPYRIGHT ACT, 1957. SECTION 62 reads:

"62. JURISDICTION OF COURT OVER MATTERS ARISING UNDER this CHAPTER. __ (1) EVERY SUIT OR OTHER CIVIL PROCEEDINGS arising UNDER THIS CHAPTER IN RESPECT OF THE INFRINGEMENT of COPYRIGHT IN ANY WORK OR THE INFRINGEMENT OF ANY OTHER right CONFERRED BY THIS ACT SHALL BE INSTITUTED IN THE district COURT HAVING JURISDICTION. (2) FOR THE PURPOSE OF SUB-SECTION (1), A `district COURT having JURISDICTION SHALL, NOTWITHSTANDING ANYTHING contained THE CODE OF CIVIL PROCEDURE, 1908 (5 OF 1908), or ANY OTHER LAW FOR THE TIME BEING IN FORCE, INCLUDE A district COURT WITHIN THE LOCAL LIMITS OF WHOSE jurisdiction, AT THE TIME OF THE INSTITUTION OF THE SUIT or OTHER PROCEEDING, THE PERSON INSTITUTING THE SUIT OR other PROCEEDING OR, WHERE THERE ARE MORE THAN ONE SUCH persons, ANY OF THEM ACTUALLY AND VOLUNTARILY RESIDES OR carries ON BUSINESS OR PERSONALLY WORKS FOR GAIN. "

12. WE WOULD LIKE TO EMPHASISE THE WORD "include". THIS shows THAT THE JURISDICTION FOR THE PURPOSES OF SECTION 62 IS WIDER THAN THAT OF THE COURT AS PRESCRIBED UNDER the CODE OF CIVIL PROCEDURE, 1908. THE RELEVANT EXTRACT of THE REPORT OF THE JOINT COMMITTEE PUBLISHED IN THE gazette OF INDIA DATED 23-11-1056 WHICH PRECEDED AND laid THE FOUNDATION FOR SECTION 62 (2) SAID: "in THE OPINION OF THE COMMITTEE MANY AUTHORS ARE deterred FROM INSTITUTING INFRINGEMENT PROCEEDINGS because THE COURT IN WHICH SUCH PROCEEDINGS