IMPORTANT POINT
A composite suit involving causes of action under different statutes can only be filed in a court with territorial jurisdiction over both causes of action.

JUDGMENT :

1. Appeal from Order No.194 of 2023 is filed by the original defendants and Appeal from Order No.207 of 2023 is filed by the plaintiffs of Trade Mark suit No.2 of 2017, against the order dated 4.8.2023 passed by the learned 4th Additional District Judge, Vadodara in Trade Mark Suit No.2 of 2017, by which the application filed by the original defendants under Order VII Rule 10 of Code of Civil Procedure, 1908 (`CPC’ for short) is allowed, however, liberty is granted to the original plaintiffs to amend the plaint by deleting the prayer of passing off action with respect to trade mark `Santushti’ of file a fresh suit for copyright infringement within fifteen days from the date of the order.

2. As the facts in both the appeals are same and the contentions raised by the parties are also almost same in reference to the provisions of CPC and also the provisions of Copyright Act and Trademarks Act, the appeals are heard together and decided by this common judgment. The parties are referred to in this judgment as the original plaintiffs and original defendants for the sake of convenience.

3. The brief facts which are stated in the plaint are such that the plaintiffs have started business of manufacturing juices, milk shakes, thick shakes, ice-cream, fresh fruit juices etc. in the name of Santushti Shakes & More in Rajkot since the year 2009; that they have initially started business under banner Shantushti Shakes & More at P.Lal Chambers, Dr.Yagnik Road, Opp.Jagnath Police Chowki, Rajkot; that they had expanded their business in Vadodara at the address stated in Shop No.4, Ashoka Chamber, Opp.Sadar Bazar, Fatehgunj, Vadodara; that the plaintiff no.2 is a company created by plaintiff no.1 and the family members are the share holders of the said company; that under the same banner, a branch of Shantushi Shakes & More was opened in Vadodara in the year 2012 and also acquired registration of Copyright in the year 2014, whereas the trademark registration was still pending; that the defendant no.1 is their relative and old friend; that the defendant no.1 has continued the shop in Rajkot, which was established by the plaintiffs in the name of Santushti Shakes & More and was doing the business at the address mentioned in the suit; that the defendant no.2 had started a franchise in Rajkot in the name of Raj Marketing and is also doing the business of selling shakes, ice-creams and fast food etc.; that the plaintiffs filed the impugned suit being Trade Mark Suit No.2 of 2017 before the learned District Court, Vadodara against the appellants for declaration, permanent injunction and accounts of profit under Section 20 of the CPC, Section 134(1)(c) of the Trade Marks Act, 1999 and Section 62 of the Copyright Act, 1957. That the defendants filed application under Order VII Rule 10 of CPC for return of the plaint below Exh.64, in which the impugned order is passed, which is challenged by both the plaintiffs and defendants by filing these appeals.

4. Heard learned advocates for the parties.

4.1 Learned advocate Mr.Majmudar for the original plaintiffs has contended that the original plaintiffs have filed the suit with the following prayers in paragraph 22 of the plaint (translated version is as follows):

“22. (a) Declare that Plaintiffs are the owner of Trademark, Label and Copy Right “SANTUSHTI” and defendants have no right to use the same.

(b) Defendants and their licensees, agents, dealer, distributors and servants be permanently restrained from printing, publishing and using the Label and Trademark “SANTUSHTI” of plaintiffs and also to restrain them from making breach of their Copyright Label Certificate Registration No.A-108936-2014 of Artistic Work “SANTUSHTI” Shakes and More.

(c) Defendants be directed to produce all the Stationery, Advertising Materials, Menu Card, Boards, Hoarding where “SANTUSHTI” label has been printed, before this Hon’ble Court and defendants be further directed to hand over all material to the plaintiff to destroy the