The central legal point established is that for territorial jurisdiction under Section 134(2) of the Trade Marks Act, the plaintiff's principal place of business and the cause of action are determinative factors.

JUDGMENT

REVIEW PET. 129/2018

1. By the present review petition the petitioner seeks review of the judgment dated 3rd January, 2018 passed by this Court whereby the application filed by the respondent being IA No. 3139/2017 under Order VII Rule 10 was allowed and the plaint was directed to be returned to be filed before the Court of competent jurisdiction.

2. Challenging the judgment dated 3rd January, 2018 the petitioner had preferred an appeal being FAO(OS) (COMM) 7/2018 which was withdrawn with liberty to file a petition seeking review of the order dated 3rd January, 2018, as according to the plaintiff, Section 134(2) of the Trade Marks Act (in short T.M. Act) was not considered in the judgment under review.

3. According to learned counsel for the plaintiff/review petitioner the plaintiff's principal place of business is in Delhi as pleaded in para 64 of the plaint at page 85. It is claimed that the registered office and the principal place of business of a company need not necessarily be the same and it would require evidence to determine which is the principal place of business of a company and cannot be decided at the preliminary stage and hence under Section 134 (2) of the Trade Marks Act this Court will have territorial jurisdiction to try and entertain the suit. Further, even if it is considered that the defendant is at Hyderabad, plaintiff does not have an office or a branch office at Hyderabad. It is submitted that it is not the case of the defendant that the suit should be filed at Hyderabad. Relying upon the decision reported as (2015) 10 SCC 161, Indian Performing Rights Society Ltd. Vs. Sanjay Dalia & Anr. if the plaintiff has no presence in territory where the offending activity is carried on, remedy of territorial jurisdiction under Section 134(2) of the T.M. Act can be availed of. Reliance is also placed on the decision of the Division Bench of this Court in FAO(OS) (COMM) 35/2016, HSIL Vs. Oracle Ceramic & Ors.. It is submitted that the plaintiff is carrying on business in Delhi through its office in Hauz Khas village where it has about 250 employees. Further, the plaintiff also carries on business in Delhi through its various `Social' restaurants located in Delhi. Thus, the plaintiff will be deemed to be carrying on business in Delhi within the jurisdiction of this Court and hence this Court would have territorial jurisdiction to try and entertain the same. Reliance is placed on the decision of this Court in CS(COMM) 90/2017, EIH Ltd. & Anr. Vs. Sahana Reality Realty Pvt. Ltd. & Ors. and (2014) Indlaw DEL 2917, World Wrestling Entertainment Inc. Vs. Reshma Collection & Ors.. It is further claimed that an application under Order VII Rule 10 CPC is to be decided on the basis of averments in the plaint and a mini trial cannot be conducted at this stage. Reliance is placed on MANU/SC/0148/2004, Exphar SA and Anr. Vs. Eupharma Laboratories Ltd. & Anr.; FAO(OS)49/2017 & CM 6951-54/2017, M/s. Allied Blenders & Distillers Pvt. Ltd. Vs. Prag Distillery Pvt. Ltd. & Anr.; CS(OS) 2583/2015, Vikrant Chemico Industries Pvt. Ltd. Vs. Shri Gopal Engineering and Chemical Works Pvt. Ltd. & Ors. and MANU/SC/0340/2019, Isha Distribution House Pvt. Ltd. Vs. Aditya Birla Nuvo Ltd. & Ors..

4. Case of the defendant before this Court in IA 3139/2017 was that this Court had no territorial jurisdiction to entertain the present suit as the defendant neither has its registered office within the jurisdiction of this Court nor carries on any business within the jurisdiction of this Court. Plaintiff's registered office is in Mumbai. Further, neither the cause of action has arisen in the territorial jurisdiction of this Court nor the defendant works for gain or profit within the territorial jurisdiction of this Court and hence the plaint is liable to be returned.

5. Section 134(2) of the Trade Marks Act reads as under:

"134. Suit for infringement, etc., to be instituted before District Court.-

(1) No suit-

(a) for the infringement of a re