Point of Law: Application under Order VII Rule 10 of CPC is to be decided on a demurrer by accepting all statements made in plaint to be true.

JUDGMENT :

[Amit Mahajan, J.]

1. Aggrieved by the impugned order dated 12.07.2022, passed by the learned Commercial Court, allowing the application filed by the respondent/defendant, under Order VII Rule 10, Code of Civil Procedure, 1908 (‘CPC’) and returning the plaint; the appellant/ plaintiff has filed the present appeal under Section 13 of the Commercial Courts Act, 2015.

2. The appellant, which is a company based in Germany, had filed the suit alleging that the respondent is manufacturing and selling counterfeit products under its well-known label,

3. The appellant/plaintiff in the suit, sought various reliefs including permanent injunction, restraining the respondent from infringing its trade mark, “PUMA”. By an order dated 10.05.2019, the learned Trial Court granted ex parte ad interim injunction, restraining the respondent from using the impugned mark. Thereafter, during the course of proceedings, the respondent filed an application under Order VII Rule 11, seeking rejection of the plaint on the ground that no cause of action had arisen so as to entitle the plaintiff to file the suit. The respondent also raised an objection that the Courts in Delhi have no territorial jurisdiction to try and entertain the suit.

4. The said application was disposed of by the order dated 28.10.2021, and it was noted by the learned Commercial Court as under:

“During the course of arguments, Ld. Counsel for defendant very fairly submitted that he has no objection, if an issue on the basis of his application under Order VII Rule 11CPC is ultimately framed during the course of trial and the said aspect can be thereafter decided after both the parties gets an opportunity to lead their respective evidence.

Ld. Counsel for defendant undertakes to file written statement within next fifteen days. Let the same be filed with direction to supply advance copy to Ld. Counsel for plaintiff who, may thereafter file replication, if any, within fifteen days.

Accordingly, matter be put up for completion of pleadings as above and filing of replication, if any, on01.12.2021.”

5. Thereafter, it appears that applications were moved by the respondent under Order VII Rule 10 CPC, application under Order VII Rule 11 and under Section 114, read with Section 151 of the CPC, seeking review of the order dated 28.10.2021 and also seeking return of the plaint on the ground of lack of territorial jurisdiction. The arguments in respect of the said applications were heard by the learned Commercial Court on 28.05.2022. The learned Judge on the said date, allowed the application for review and considered the application under Order VII Rule 11, CPC and application under Order VII Rule 10, CPC and reserved the matters for orders.

6. Vide impugned judgement dated 12.07.2022, the learned Commercial Court dismissed the application under Order VII Rule 11 but allowed the application under Order VII Rule 10, CPC which led to filing of the present appeal.

7. The learned Commercial Court considered the provisions of Section 134 of the Trade Marks Act, 1999 (hereafter ‘the TM Act’), and Section 20 (2) of the CPC, and examined the law in relation to institution of suits for infringement of trade marks. It relied upon the judgment passed in Ultra Home Construction Pvt. Ltd Vs. Purushottam Kumar Chaubey & Ors.: 2016 SSC Online Del 376, to consider whether the Court has the territorial jurisdiction under the Trade Marks Act, to entertain the suit.

8. The learned Commercial Court, however, examined the facts pleaded in the plaint to hold that no part of cause of action had arisen in Delhi to entitle the plaintiff to file the suit within the territorial jurisdiction of the concerned Commercial Court.

Arguments

9. Learned Counsel appearing for the appellant has challenged the order, essentially on two grounds. First of all, he contended that the order dated 28.10.2021, whereby the Court had decided that the arguments raised in the earlier application filed by the respondent under Order VII Rule 11