The main legal point established in the judgment is the requirement for evidence to decide issues of territorial jurisdiction and the granting of interim injunction, and the dismissal of the appeal on the grounds of lack of merit.

Sanjiv Khanna, J.

CM No.25831/2018

Allowed, subject to all just exceptions.

The application is disposed of.

CM Nos.25830/2018 & 25832/2018

These are applications seeking condonation of delay of 48 days in filing of appeal and 9 days in refilling of appeal. Learned counsel for the non-applicant/respondent present on advance notice states that he has no objection if the delay in filing and refilling is condoned. The applications are accordingly allowed.

This intra court appeal under Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 read with Order XLIII Rule (1) of the Code of Civil Procedure, 1908 (‘CPC’) impugns the order dated 24th January, 2018 passed by the learned Single Judge in CS(OS) No.2584/2015; (i) dismissing IA No.2187/2016 under Order VII Rule 11CPC for rejection of the plaint, observing that the issue of jurisdiction was a mixed question of law and fact, that could not be decided without allowing the parties to lead evidence and (ii) allowing IA No.18038/2018 filed by the respondent for interim injunction under Order XXXIX Rules 1 and 2 CPC and dismissing IA No.23918/2015 filed under Order XXXIX Rule 4 CPC for vacation of ex parte interim injunction. Consequently, ex parte ad interim injunction, restraining the appellants, partners, officers, directors, employees, representatives, etc. from using the mark ‘Doctor Hazel’ or any other mark/label that is identical or deceptively similar to the first respondent’s registered trademark ‘Doctor Brand Phenyle’ has been confirmed. The impugned order, however, clarifies that the appellants would be at liberty to use the mark ‘chemist brand germ troll.’

2. On the question of territorial jurisdiction and rejection/return of plaint, at this stage, we are primarily concerned with the assertions made in the plaint, as evidence of the parties is to be recorded. Paragraphs 21 and 35 of the plaint read as under:-

“21. The Defendant No.1company presently manufactures its products under the CHEMIST brand. The Defendant No.1’s website (www.shrigopal.com) states that its business has been “running successfully in the state of Uttar Pradesh, Madhya Pradesh, Uttaranchal, Chattisgarh, Haryana, Delhi, Punjab, Rajasthan, Bihar & Himachal Pradesh (emphasis supplied).

Now CHEMIST brand is poised for major expansion programme to launch the products all across the country(sic.).”

A print out of the Defendant No.1’s website evidencing the above statements is attached herewith to the instant suit documents. .......

35. This Hon'ble Court has the territorial jurisdiction to try and adjudicate the instant suit. It is respectfully submitted that the Defendants are selling the infringing products within Delhi in a surreptitious and clandestine manner, i.e. without issuing invoices against the goods sold, which is within the jurisdiction of this Hon'ble Court. Furthermore, the Defendant No.1's itself admits selling its goods quite successfully in Delhi, on its own website i.e. www.shrigopal.com. Additionally, the Defendant No.1 has recently applied for registration of the impugned DOCTOR HAZEL'S BRAND PHENYLE label in Delhi, to be used on an all India basis, which includes Delhi.” (emphasis supplied)

3. Impugned order also refers to the report dated 14th September 2017 of the Local Commissioner appointed to visit shops in Khari Baoli, Delhi and was unable to find any products of the appellants. However, the Local Commissioner has stated that on inquiry shopkeepers had confirmed having sold 2-3 bottles of the said brand about 3 months back, when demand for the product arose. On further inquiry, Local Commissioner was given contact details of the supplier, situated in Kundli, Delhi. The impugned order also refers to the earlier Local Commissioner’s report dated 28th September, 2015, wherein it was stated as under:-

“...... Mr. Prince (son of the defendant) further claimed that the defendant company manufactures products that are sold in all