The main legal point established is that the invocation of territorial jurisdiction under specific provisions of the Trade Marks Act, 1999 and the CPC must be analyzed based on the facts and documents filed with the plaint.

JUDGMENT

I.A. 4953/2023 (Order VII Rule 11 of the CPC)

1. This is an application, by the defendant, under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) for rejection of the plaint on the ground of want of territorial jurisdiction.

2. Though a finding of want of territorial jurisdiction would ordinarily carry one to Order VII Rule 10 of the CPC rather than Order VII Rule 11 of the CPC, Ms. Kangan Roda has drawn my attention to a judgment of the Division Bench of this Court in Radico Khaitan Ltd. v. Nakshatra Distilleries & Breweries Ltd., (2017) 241 DLT 48 which upholds the decision of a learned Single Judge to reject a plaint under Order VII Rule 11 of the CPC on the ground of want of territorial jurisdiction.

3. Without, therefore, entering into the distinction between Order VII Rule 10 of the CPC and Order VII Rule 11 of the CPC, I have proceeded to hear learned Counsel on the core issue as to whether this Court can be said to be lacking in territorial jurisdiction to adjudicate the plaint. Ms. Roda initially drew my attention to para 46 of the plaint, which deals with the jurisdiction of this Court to entertain the plaint which reads thus:

"46. That this Hon'ble Court has jurisdiction under Section 134 of the Trade Marks Act, 1999 as the Plaintiff, has been voluntarily carrying on its activities in the jurisdiction of Delhi through its head office and registered office at 601, 6th Floor Bhandari House, 91, Nehru Place New Delhi 110019, India."

4. Ms. Roda submits that invocation of the territorial jurisdiction of this Court has, therefore, been predicated in the plaint solely on Section 134¹ [134. Suit for infringement, etc. to be instituted before District Court.-- (1) No suit-- (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit. (2) For the purpose of clauses (a) and (b) of sub-section (1), a "District Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. Explanation.-For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user] of the Trades Mark Act, 1999. She submits that, seen solely in the light of Section 134, this plaint would not be amenable to the jurisdiction of this Court, as the case would fall within the third category of cases envisaged in para 14 of the judgment of the Division Bench of this Court in Ultra Home Construction Pvt Ltd v. Purushottam Kumar Chaubey, 2016 SCC OnLine Del 376. In the said paragraph, this Court had expressed the opinion, apropos Section 134(2) of the Trade Marks Act that, if the plaintiff has a principal office at one place and subordinate or branch office at another place and the cause of action arises where the subordinate office is located, the plaintiff would be deemed to be carrying on business where the subordinate office is located and would necessarily have to institute the suit before the Court having jurisdiction over the subordinate office, and not before the Court having jurisdiction over the principal office, which would be coram non judice. The said passage reads thus:

"14. It is evident from the above observations that the interpretation given to the expression "carries on business" in the context of a defendant under section 20 of t