The situs of the trademark can be construed as the place where the cause of action has arisen, and the provisions of the Companies Act regarding disability to bring a suit were not relevant at the stage of revoking the leave.

(Appeal filed under Order XXXVI Rule 11 of the O.S. Rules read with Clause 15 of the Letters Patent against the order dated 1.4.2005 passed in Appln.No.3352 of 2004 in Appln.No.2306 of 2004 in C.S.No.512 of 2004.)

P.K. MISRA, J.

The present appeal is directed against the order dated 1.4.2005 passed by the learned single Judge in Appln.Nos.2306 and 3352 of 2004 arising out of C.S.No.512 of 2004.

2. The respondent filed C.S.No.512 of 2004 under Order IV Rule 1 of Madras High Court Original Side Rules and Order VII Rule 1 of C.P.C. read with Sections 27, 28, 29, 134 & 135 of the Trade Marks Act, 1999 and Sections 51, 55 & 62 of the Copyright Act, 1957, against the present appellants for the alleged infringement of the plaintiff’s registered trademark and for other consequential reliefs, including permanent injunction. At that stage, the plaintiff filed Appln.No.2306 of 2004 under Clause 12 of the Letters Patent seeking leave to file the suit. Such leave was granted by order dated 23.6.2004. Thereafter, the defendants (present appellants) filed Appln. No.3352 of 2004 seeking to revoke the leave granted. In such application, the main contention of the defendants was to the effect that they are situated outside the territorial jurisdiction of this court; the goods in respect of which there is violation of trademark are not sold within the jurisdiction of this Court and the plaintiff does not reside or carry on business or personally works for gain within the jurisdiction of this Court, and, therefore, in the absence of any territorial jurisdiction, the leave should not have been granted. It is further stated that the plaintiff being a foreign company has to comply with the provisions contained in Sections 592 to 597 of the Companies Act and without complying with such provisions, the plaintiff is disabled from bringing any action in a court of law as contemplated under Section 599 of the Companies Act.

3. A counter had been filed by the plaintiff / respondent to the aforesaid application.

4. The learned single Judge after hearing the counsels for both sides, came to the conclusion that the situs of the trademark allegedly infringed being situated in the appropriate office of the Trade Marks Registry at Chennai, the cause of action can be stated to have arisen within the jurisdiction of this Court. Learned single Judge has also negatived the contention of the defendants regarding applicability of Section 599 of the Companies Act. On the basis of the aforesaid conclusion, the application for revoking the leave granted to the plaintiff/respondent to file the suit has been dismissed and the leave already granted in Appln.No.2306 of 2004 has been confirmed. The said order is challenged under the present appeal.

5. We have heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the respondent / plaintiff, who has entered appearance by filing a caveat.

6. Section 134 of the Trade Marks Act, 1999 provides for the forum for institution of the suit for infringement. Such provision is to the following effect :-

“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 Civiil 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 pr