The sale of goods in a particular jurisdiction can give rise to the cause of action and confer territorial jurisdiction to the Court, as per the interpretation of 'carries on business' and 'personally works for gain' in the judgment in Dhodha House v. S.K. Maingi.

JUDGMENT :

A.K. Sikri, J.

IA No. 258/06

1. Defendant No.1 has moved this application under Order 7, Rule 11 of the CPC (which is essentially an application under Order 7, Rule 10 CPC) read with Section 151 thereof for return/rejection of the plaint on the ground that this Court has no territorial jurisdiction to entertain the suit. In support, recent judgment of the Supreme Court in the case of Dhodha House Vs. S.K. Maingi, AIR 2006 SC 730 is cited.

2. From the perusal of the plaint it is clear that the plaintiff has claimed that this Court has the jurisdiction:

(i) In view of the fact that the application for registration of the trade mark is filed in the Trade Mark Registry in Delhi and is advertised in Delhi;

(ii) In view of the provisions of Section 134 of the Trade Marks Act, 1999; and

(iii) In view of the fact that the defendant is selling the goods within the territorial jurisdiction of this Court.

3. It is conceded by learned Counsel for the plaintiff that in view of the Judgment of the Supreme Court in Dhodha House v. S.K. Maingi (supra), the plaintiff cannot claim the territorial jurisdiction of this Court on the basis of first two grounds. Therefore, it is the third ground only which needs to be considered and is pressed by the learned Counsel for the plaintiff and the submission is that this Court would have the territorial jurisdiction, once it is proved that the goods are sold in Delhi.

4. In para 30 of the plaint, the plaintiff has made specific averment that "the impugned goods of the defendants are also selling in Delhi, though without issuance of supporting invoices." Learned Counsel for the plaintiff has also referred to the documents filed by defendant No. 1 itself which include invoices dated 22nd March 2001 and 29th November 1999 as per which, the infringing goods have been sold to two parties in Delhi.

5. Learned Counsel for the defendants, on the other hands, submits that the defendant No. 1 is a company incorporated under the Indian Companies Act. Since it is not having any branch office or agent in Delhi, it cannot be said that it is carrying on any business or is working for gain in Delhi. In support of this reliance is placed on the judgment of the Supreme Court in the case of Kusum Ingots and Alloys Ltd. Vs. Union of India (UOI) and Another, AIR 2004 SC 2321. Submission made is that though that was a writ petition filed under Article 226 of the Constitution of India, the Supreme Court clearly opined that for interpretation of the phraseology used therein, regard shall be had to the provisions of Section 20(c) of the CPC which shall apply to the writ proceedings as well. It is thus argued that ratio of that case shall be applicable while examining this question of territorial jurisdiction in a suit, as that case was decided on the principles contained in Section 20(c) of the CPC which have direction application to suits.

6. Since it is not in dispute and there cannot be any dispute that for determination of the territorial jurisdiction of this Court provisions of Section 20 of the CPC are applicable, let me first examine the issue in the light of the said provision. Section 20 reads as under:

Section 20. Other suits to be instituted where defendants reside or cause of action arises. - Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution: or

(c) the ca