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2020 Supreme(Mad) 2168
IN THE HIGH COURT OF MADRAS
R. Subbiah, C. Saravanan, JJ.
Unicorn Maritimes (India) Private Limited – Appellant
Versus
Valency International Trading Pvt. Limited and Ors. – Respondents
O.S.A. No. 195 of 2020, C.M.P. Nos. 10230 and 10232 of 2020
Decided On : 10-12-2020
Advocate Appeared:
For the Appellant : B. Vijay for Eswar Kumar Rao
For the Respondent: L. Ravichander, Senior Counsel for Mayar Mundra and Naved Askari, Senior Counsel for B. Deepak Narayanan
Headnote:
Constitution of India,1950 - Articles 226 and 227 - Trade and Merchandise Marks Act, 1958 - Section 134(2) - Code of Civil Procedure,1908 - Sections 20, 16 and 9 - Innocent agent appointed for down loading and discharging cargo from the ship - Sole consignor - Defendants have their registered office at Singapore - Whether the jurisdiction has been contrived by clever drafting by the plaintiff - Whether the Principles of Forum Conveniens or analogous principles will apply or not for consideration of an Application for leave to sue under Clause 12 of the Letters Patent fell for consideration before the Full Bench of this Court - whether the cause of action has arisen qua trademark infringement within jurisdiction of Court - Whether it be called forum conveniens or that the jurisdiction of the Court under Section 20 of Code of Civil Procedure is different from Clause 12 of Letters Patent - Whether the proposed suit was damages or demurrages incurred - Plaintiff has a long grievance against the defendants. According to the plaintiff, they are an innocent agent appointed for down loading and discharging the cargo from the ship Port in Andhra Pradesh. The ship berthed at Krishnapatnam Port - Cargo was down loaded/discharged by plaintiff acting as agent appointed by second defendant. However, in the Bills of Lading, the names of the third and first defendants were jointly mentioned - Plaintiff claimed that they did not know the reason why the name of the first defendant was mentioned - Plaintiff claimed that they always believed that third defendant was the sole consignor - It is to be mentioned that cargo was 55,000 MTs of coal from South Africa to Krishnapatnam Port in Andhra Pradesh, India - Ship did berth at Chennai – Held, Difference as to whether proposed suit was damages or demurrages incurred. Even if the said appellant had scanned said letter from Chennai and sent to 1st respondent pursuant to the email - conferred to a plaintiff to file a suit under the provisions of the Trade Marks Act, 1999 and/or Copy rights Act 1957 merely based on residence of plaintiff within the jurisdiction cannot be imported for ordinary suit under Section 9 of the CPC - Letters Patent as also Civil Procedure Code do not confer jurisdiction to a court to entertain where plaintiff resides or carries on business if no part of cause of action arises within jurisdiction of Court - Only if a part of cause of action arises within the jurisdiction of Court, question of granting leave under Clause 12 of Letters Patent will arise - Decisions relied by the learned counsel for the appellant and learned senior counsel for 1st respondent touching on the merits of dispute relating to grant of relief for anti suit injunction are not relevant for determining the questions of leave - Original jurisdiction of this Court was wrongly attempted to be invoked by the appellant based on the clever drafting of the plaint. The learned Single Judge has correctly dismissed – appellant is dismissed
JUDGMENT :
C. Saravanan, J.
1. The appellant herein is the unsuccessful plaintiff. The appellant is aggrieved by the impugned order dated 11.09.2020 passed by the learned Single Judge in A. No. 1674 of 2020 in C.S.D. No. 50213 of 2020. The respective respondents in this appeal were the 1st to 3rd defendants in the suit.
2. By the impugned order, the learned Single Judge has dismissed the application filed by the appellant under Clause 12 of the Letters Patent Act, 1865 seeking leave to sue the respondents, with the following observations:-
22. Even though, the suit has not been taken on file and technically the nomenclature should be applicant and respondents, for the sake of convenience, the parties are referred as plaintiff and the defendants.
23. The plaintiff has a long grievance against the defendants. According to the plaintiff, they are an innocent agent appointed for down loading and discharging the cargo from the ship MV Stella Cherise at Krishnapatnam Port in Andhra Pradesh. The ship berthed at Krishnapatnam Port. The cargo was down loaded/discharged by the plaintiff acting as agent appointed by the second defendant. However, in the Bills of Lading, the names of the third and first defendants were jointly mentioned. The plaintiff claimed that they did not know the reason why the name of the first defendant was mentioned. The plaintiff claimed that they always believed that the third defendant was the sole consignor. It is to be mentioned that the cargo was 55,000 MTs of coal from South Africa to Krishnapatnam Port in Andhra Pradesh, India. The ship did not berth at Chennai. The first and second defendants have their registered office at Singapore. The registered office of the third defendant is outside of the jurisdiction of this Court at Ernavoor, Chennai-600057.
24. The claim of the plaintiff that the registered office of the third defendant is situated within the jurisdiction of this Court is wrong. The plaintiff alone has a registered office Chennai and branch offices at across the country.
25. The brief case against the plaintiff in the Court at Singapore is that the delivery of the cargo should not have been made without specific instruction from the first defendant. The plaintiff had delivered the cargo to the third defendant. The third defendant had paid only the value of 2,500 MTs of coal of cargo to the first defendant. They have not paid the value of the balance 52,500 Mts. The delivery of the cargo to the third defendant by the plaintiff took place at Krishnapatnam Port in Andhra Pradesh. The third defendant paid the total value of the cargo to the plaintiff and the plaintiff had a bank account at Chennai and therefore, the plaintiff claims on this ground, that part of cause of action arose within the jurisdiction of this Court.
26. I do not agree.
27. The plaintiff had an option to open a bank account at any place in the country. Merely because the plaintiff, for their convenience have a bank account at Chennai would not give rise for the cause of action.
28. The actual cause of action arose at Andhra Pradesh, if at all the plaintiff had issues to protect its interest because the cargo was down loaded at Krishnapatnam Port at Andhra Pradesh and delivered to the third defendant at Andhra Pradesh. The delivery of cargo at Andhra Pradesh is the cause of action for institution of the suit at Singapore by the first defendant. This delivery is claimed to be in direct violation of the letter dated 31.08.2018 in which the plaintiff undertook that delivery would be made only in accordance with the directions issued by the first defendant.
29. According to the plaintiff, the letter dated 31.08.2018 was issued under coercion by the second defendant. It was issued from Chennai and therefore, it is stated that the part of cause of action arose within the jurisdiction of this Court.
30. I do not agree.
31. Issuance of the letter would not give rise to any cause of action. The letter was issued to the first defendant at Singapore w
