The court emphasized that the mere non-filing of the application under Order VII Rule 10 of the CPC, when a plea of the court not having territorial jurisdiction has already been taken in the written statement, cannot lead to a different outcome.

1. The counsel for the defendants in each of the suits has contended that in terms of (i) HSIL Limited Vs. Marvel Ceramics 2017 SCC OnLine Del 6783, appeal where against was dismissed in HSIL Limited Vs. Marvel Ceramics 2017 SCC OnLine Del 11571 (DB) and SLP(C) No.36323/2017 preferred where against was dismissed on 11th January, 2018; (ii) HSIL Ltd. Vs. Imperial Ceramic 2018 SCC OnLine Del 7185; and, (iii) order dated 26th February, 2018 in CS(COMM) No.843/2016 titled HSIL Ltd. Vs. Mulia Brothers, the plaint in these three suits is also to be returned to the plaintiff for filing in the Court of appropriate jurisdiction. It is stated that the plaint in these three suits is identical, qua the plea of territorial jurisdiction, to the plaint in the aforesaid cases.

2. The counsel for the plaintiff has argued that there is an essential difference between these three suits and the suits judgments wherein are mentioned herein above. It is contended that while in all the aforesaid suits the defendants therein had filed applications under Order VII Rule 10 of the Code of Civil Procedure, 1908 (CPC) prior to the plaintiff applying under Order VI Rule 17 of CPC, as has been done by the plaintiff in these three suits also, the defendants in these three suits have not filed any applications under Order VII Rule 10 of the CPC. It is argued that what prevailed with this Court in HSIL Ltd. Vs. Imperial Ceramic supra for not considering the applications under Order VI Rule 17 of the CPC filed by the plaintiff was the prior filing of the applications by the defendants under Order VII Rule 10 of the CPC and in the absence of any application under Order VII Rule 10 of the CPC by the defendants in these suits, there is no impediment to the application under Order VI Rule 17 of the CPC being considered. It is further argued that though as per HSIL Limited Vs. Marvel Ceramics supra, on the plaint as existing, this Court does not have territorial jurisdiction but if the amendment as sought by the plaintiff is allowed, then this Court would have territorial jurisdiction to entertain these suits.

3. The counsel for the defendants points out that there was no application under Order VII Rule 10 of the CPC in HSIL Ltd. Vs. Mulia Brothers also but the counsel for the plaintiff still, on 26th February, 2018, when the said suit was listed, himself stated that HSIL Ltd. Vs. Mulia Brothers was covered by HSIL Ltd. Vs. Imperial Ceramic. Attention in this regard is invited to paras 1 & 13 of the order dated 26th February, 2018 in HSIL Ltd. Vs. Mulia Brothers.

4. The counsel for the plaintiff though agrees that in HSIL Ltd. Vs. Mulia Brothers, there was no application under Order VII Rule 10 of the CPC but states that he was under a mistaken impression that there was an application under Order VII Rule 10 of the CPC.

5. I may mention that the plaintiff instituted these suits as also the other suits, judgments wherein are mentioned above, invoking the territorial jurisdiction of this Court under Section 134 of the Trade Marks Act, 1999, pleading that the plaintiff is located at Delhi and did not have any branch/subordinate office in Gujarat, where the defendants are located and thus this Court had territorial jurisdiction to entertain the suits. However, in HSIL Limited Vs. Marvel Ceramics it was found that the plaintiff itself had filed photocopy of its annual report before this Court and which showed the plaintiff to be having regional office at Ahmedabad. There was no plea in the suits, judgments wherein are mentioned above, as also none shown in the present suits, of any cause of action having accrued to the plaintiff against the defendants at Delhi. The plaintiff, by way of amendment of plaint in these suits as well as other suits judgments wherein are mentioned above, wanted to plead that the defendants are selling their goods under the impugned mark at Delhi.

6. I have enquired from the counsel for the plaintiff as to on what basis the plaintiff in the a