1. “M/s. Duro Flex Pvt. Ltd.”, the appellant, is a company incorporated and registered as a private limited company under the Companies Act, 1956 and stated to be engaged in the business of manufacturing and marketing Rubberised Coir Products such as Mattresses, Pillows, Cushioning materials and Air Filters since 01.10.1981 under the brand name “DUROFLEX”. It is the case of the appellant that initially the business was carried on under the name of “M/s. Duroflex Coir Industries Private Limited”, but that name was changed on 08.03.1996 to “M/s. Duroflex Limited” and thereafter on 29.09.2001 to the present entity.

2. The appellant applied for registration vide Application No.401231 dated 01.02.1993 of its Trade Mark “DUROFLEX” adopted from 01.10.1981, such application having been preferred before the Deputy Registrar of Trade Marks, Madras, in Class-20 for goods, rubberised coir products - Mattresses, Pillows, Cushioning materials and Air Filters. The trade mark was registered on 10.02.1983. The appellant claims large sales throughout the country under the said Trade Mark. The Trade Mark is stated to have been published in the Trade Mark Journal dated 16.08.1987 and on registration, the Registration Certificate was issued on 12.08.1988. The appellant alleges that the respondent dishonestly adopted the trade mark “DURO FLEXI PUFF”, which came to the knowledge of the appellant in November, 2005. The Trade Mark is alleged to be deceptively similar and identical to the registered trade mark of the appellant with only the suffix “PUFF” being added. The appellant thus sent a legal notice, but the respondent refused to oblige and the result is that the appellant filed a suit for perpetual injunction seeking a decree against the respondent, as also to deliver, for destruction and a preliminary decree for rendering accounts of profits. The respondent company being a private limited company with its registered office located in Sadar Bazar, Delhi, the cause of action paragraph in the plaint alleges that the same arose at Chennai where the Register of Trade Mark in which the plaintiff's Trade Mark is maintained. The appellant has an Office/Depot and is working for gain in Chennai from where it started manufacturing the product under the Trade Mark “DUROFLEX”, the Certificate of Registration has been issued at Chennai, from where the appellant issued a legal notice and the reply of the respondent was received, declining to discontinue the use of the Trade Mark. Since the respondent was carrying on business outside the jurisdiction of the Court, it is stated to be on account of abundant caution that the appellant filed Application No.323 of 2007, seeking leave to sue under Clause-12 of the Letters Patent. This application has been dismissed by the impugned order of the learned Single Judge dated 29.08.2007, which has been assailed in the present appeal.

3. The impugned order is predicated on the principle of forum conveniens. The learned Single Judge took note of the fact that there was no allegation of any sale of goods within the jurisdiction of this Court and analysed the plea of the appellant based on the factum of registration of the Trade Mark at Chennai. After referring to various judicial pronouncements, the learned Single Judge opined that the question whether merely because the Office of the Trade Mark Registrar is situated in Chennai would amount to registration of the Trade Mark in Chennai has to be answered in favour of the appellant, in view of the pronouncement of the Division Bench of this Court in S.B.S. Jayam and Co. vs. Gopi Chemical Industries Limited, India, reported in (1997(1)MLJ 287). However, the question of forum conveniens was distinguished from this aspect and it was concluded that the appellant did not have its principal place of business at Chennai as only a Branch Office was located here, while the registered office was in Alleppey, Kerala, with branches all over India. The respondent did not carry on bus