Denial of leave to sue held not proper.

R. Jayasimha Babu, J.

1. The plaintiffs have filed this appeal against the order declining to grant leave to sue. The suit was for an injunction to prevent infringement as also to prevent passing off of the defendant's product as that of the plaintiffs, the product being a tablet name as 'FESOVIT'. There is no dispute about the fact that this is intended for the average consumer to whom such goods were sold through chemical shops. The defendant is based in Bombay, whereas one of the two plaintiffs has an office at Madras.

2. The plaintiff produced the invoices under which it had purchased the product manufactured by the defendant, such purchase having been made place at Madras. The purchase was effected from chemists who normally deal in medicines. This tablet, it is stated, is an iron tonic and is sold through chemists and druggists shop. The fact that it is manufactured by the defendant was not disputed by the defendant.

3. The only ground on which the defendant wanted the leave not to be granted was that the plaintiffs had not stated in the plaint that the defendant has a distributor in the city of Chennai for the product manufactured by them. The fact that the product had been sold by the chemists in Chennai and that the invoices produced by the plaintiffs related to these sales was not disputed. Though the defendant filed an affidavit before the single Judge, the defendant did not state that it had no distributors in Tamil Nadu or in the city of Chennai or that it had not authorised any one to sell its products in the city of Chennai or in the State of Tamil Nadu.

4. It is evident from the conduct of the defendant that the product manufactured by the defendant is, in fact, being sold at Madras and such sale could reasonably be inferred to have been effected through the normal commercial channels of wholesale distributors and dealers etc. It is the defendant who knows best how this marketing is done, but it has not chosen to disclose the same. It has not even averred that it has no distributor in the city of Chennai or other areas including Chennai.

5. Learned counsel for the defendant submitted that it has been the law from 1947 in India, that in the absence of proof of commercial distribution of products within the jurisdiction of the Court in which the suit is instituted, such a Court would not have jurisdiction to entertain the same. Counsel referred to a decision of the learned single Judge of the High Court at Lahore in the case of Firm Bhagwan Das v. Watkins Mayor & Co., AIR (34) 1947 Lahore 289, that of a learned single Judge of Punjab & Haryana High Court in H.P.H.P. Marketing & Processing Corpn. v. M.M. Breweries, AIR 1981 P&H 117; that of a learned single Judge of this Court in Amrutanjan Ltd v. Mehta Pharmacy Company, 77 IPLR 20; and an unreported Judgment of the Karnataka High Court in the case of Ambika Food Products v. New Swastic Flour Mill in MFA No. 2438 of 1991 decided on 07.01.1994. Counsel also relied on the judgment of another learned single Judge of the Delhi High Court in Glen Raven Mills Inc. v. Vaspar Concepts Private Limited & Anr., 1995 PTC (15) 392.

6. In the first of the cases relied upon, it was held that in order that the Court may exercise jurisdiction there must by something to establish that the defendant was responsible for sending the goods to the place where the goods had been sold. In the case decided by the Punjab and Haryana High Court it was found that there was no evidence to show that any transaction of sale of goods under the trade mark that was impugned, by the defendant in the suit had taken place at the place where the suit had been filed. In the case decided by the learned single Judge of this Court in the case of Amrutanjan Ltd. it was found that the defendants were selling in the State of Gujarat and that there had been no real sale of the products in the city of Madras. In the case decided by the learned single Judge of the Karnataka High Court it was found that the