The validity of denial of territorial jurisdiction and the entitlement of a licensee to invoke Section 134 of the Trade Marks Act, 1999 were central legal points established in the judgment.

IA No.1078/2018 (of the defendant under Order VII Rule 10 CPC).

1. The defendant, in this suit for permanent injunction restraining infringement of the trade mark and passing off and for ancillary reliefs, after the issues were framed in this suit on 23rd February, 2017 including an issue as to the territorial jurisdiction of this Court, seeks return of the plaint under Order VII Rule 10 of the Code of Civil Procedure, 1908 (CPC).

2. The counsel for the plaintiffs appearing on advance notice seeks adjournment to file reply.

3. An application under Order VII Rule 10 of the CPC is to be decided on the basis of averments contained in the plaint and for this reason it is felt that there is no need for a reply and the plaintiffs who have already received advance copy of the application ought to have come prepared to address on the application. Adjournment sought is thus refused.

4. The senior counsel for the defendant/applicant has been heard.

5. The plaintiff no.1, a Company incorporated in Germany and the plaintiff no.2 Zenner Aquamet India Pvt. Ltd., a licensee of the plaintiff no.1 and having its registered office at Delhi, have sued the defendant/applicant having its registered office at Ernakulam and local office at 2, Community Centre, Saket, New Delhi – 110 017, for the reliefs as aforesaid. Para 35 of the plaint with respect to territorial jurisdiction is as under:-

“35. This Hon’ble Court has jurisdiction to entertain and try present suit as Plaintiff No.1 carries on business in India through its subsidiary Plaintiff No.2 which has a registered office in Delhi as mentioned in paragraph 2 hereinabove. The defendant is also having its office in the city of Delhi. Hence this Hon’ble Court has jurisdiction to entertain and try the present suit.”

6. The suit was entertained and summons and notice of the application for interim relief issued to the defendant/applicant, though no ex parte or interim relief granted till now.

7. The defendant/applicant, in its written statement, with respect to the paragraph of the plaint qua territorial jurisdiction has pleaded as under:-

“It is denied that this Hon’ble Court has any jurisdiction. In any event Section 10 CPC is attracted and therefore, the present suit is liable to be stayed. It is denied that the plaintiff shall suffer any loss, damage and injury. It is the plaintiffs who by their unauthorised adoption and use of the trade mark Zenner are deceiving the consumers and public at large. The allegations to the contrary are wrong and are denied.”

8. I have enquired from the senior counsel for the defendant/applicant, whether the defendant/applicant, elsewhere in its written statement has denied having its local office at 2, Community Centre, Saket, New Delhi as pleaded by the plaintiffs.

9. The senior counsel for the defendant/applicant, on instructions states that there is no denial thereof.

10. On 23rd February, 2017, while framing issues, issue no.8 framed is as under:-

“8. Whether this court has territorial jurisdiction to entertain and agitate the present suit?”

11. Though in my view, the defendant having not denied having local office at the address pleaded in the plaint, at Delhi, the parties were not at issue on the aspect of territorial jurisdiction and the issue aforesaid ought not to have been framed, be that as it may, the defendant is in any case not entitled to maintain this application under Order VII Rule 10 of the CPC.

12. Though the application is liable to be dismissed merely on the grounds of (i) the defendant/applicant having not denied office at Saket, New Delhi; and, (ii) the application having been filed after the suit has been pending for nearly six years and is set down for trial but since the senior counsel for the defendant/applicant has also contended that the plaintiffs are not entitled to invoke Section 134 of the Trade Marks Act, 1999 and an issue has been framed, it is deemed appropriate to deal with the said aspect as well.

13. The contention of the senior