( 1 ) IN a suit seeking to restrain the defendant from manufacturing, marketing, selling or advertising any milk and dairy product under the trade mark "madhuratan", the defendant has filed this application under Order 7 Rule 11 CPC for rejection of the plaint on the ground that it does not disclose any cause of action and this court lacks territorial jurisdiction to deal with it.

( 2 ) THE plaintiff s case in brief is that it is engaged in the business of processing, manufacturing and marketing a wide range of milk and dairy products, including ghee under the trade mark "madhu" since the year 1970; it is proprietor of the said trade mark on account of its honest and bona fide prior adoption; it has been using "madhu Label" in an artistic make up and distinctive and associated get up and owns the copyright on it; its trade mark has already become distinctive and associated with the plaintiff s goods on account of its continuous, extensive and exclusive user and the public at large associates the said trade mark to the goods of the plaintiff. It is stated that the defendant, who is also engaged in the manufacture and sale of milk and dairy products, has adopted and started using the trade mark "madhuratan" in respect of its products on or about September 2001, out of greed with a view to take advantage and trade upon the reputation of the plaintiff; the impugned trade mark of the defendant is identical with and deceptively similar to the plaintiff s said trade mark and, therefore, it is bound to cause deception -and confusion in the normal course of business activities of the plaintiff. It is averred that immediately on coming to know of the impugned adoption and User by the defendant, the plaintiff issued a Cease and Desist notice to the defendant vide their letter dated 11/09/2001; the defendant refuted the plaintiff s claim in its reply dated 26/09/2001. Since the defendant did not stop user of the said trade mark, the present suit was filed.

( 3 ) THE defendant in its written statement has taken a preliminary objection to the maintainability of the suit on the ground that this court lacks territorial jurisdiction as no part of cause of action has arisen within the territorial jurisdiction of this court. It is claimed that the defendant is carrying on its business activities in Gwalior, Madhya Pradesh and has never sold and marketed goods in Delhi or New delhi. On merits, it is denied that the trade mark "madhuratan" is in any manner identical with or deceptively similar to the plaintiff s trade mark "madhu" label, visually or phonetically or that it is likely to cause any deception or confusion in the mind of the purchasers.

( 4 ) IN the wake of its preliminary objection that this Court lacks territorial jurisdiction, the defendant has now filed this application for rejection of the plaint.

( 5 ) THE application is resisted by the plaintiff on the pleas that the defendant does work for gain in delhi which fact is admitted by the defendant in its reply dated 26/09/2001 to the plaintiff s legal notice, claiming that its goods under the trade mark "madhuratan" are sold throughout India by stating that brand name "madhuratan" commands reputation and goodwill not only in whole of Madhya Pradesh but whole of India, which includes Delhi; the defendant is procuring the empty containers printed with impugned trade mark for packing its goods from Delhi and, therefore, the cause of action does arise in Delhi, conferring jurisdiction on this court to try the suit.

( 6 ) TO controvert the stand of the plaintiff the defendant has filed rejoinder affidavit, wherein, while reiterating that this court does not have jurisdiction to grant the relief prayed for in the suit, it is asserted that the defendant is permanently settled and carrying on its business activities at Gwalior, which fact is borne out from the plaint itself; there is no averment in the plaint either that the defendant has its office or place of work in Delhi or th