The main legal point established in the judgment is that a suit for infringement of a trademark may be instituted at the place where the suitor(s) actually and voluntarily reside or carry on business or personally work for gain, and the non-joinder of a necessary party does not render the suit liable for dismissal if an effective decree can be passed between the existing parties.

JUDGMENT

(Prayer in A.NO.450 OF 2022: This Application is filed under Order XIV Rule - 8 of O.S. Rules r/w Order I Rule 13 of the CPC praying to dismiss the suit for non-joinder of necessary party in C.S.No.415 of 2020.

A.NO.452 OF 2022: This Application is filed under Order XIV Rule -8 of O.S. Rule r/w Order VII Rule 10 of the CPC praying to return the Plaint to the appropriate court since this Court does not have jurisdiction to entertain the present dispute.)

Common Order

1. These two applications were filed by the Defendant. In Application No.452 of 2022, the Defendant prays for return of the plaint on the ground that this Court does not have the jurisdiction to entertain the suit. Application No.450 of 2022 is for dismissal of the suit for non-joinder of a necessary party. The application for return of plaint is dealt with first.

2. The Applicant/Defendant asserts that no part of the cause of action has arisen within the jurisdiction of this Court. The Applicant states that both the Applicant and the first Respondent/first Plaintiff have their principal place of business at Coimbatore. According to the Applicant, the second Respondent/Plaintiff has been unnecessarily joined as a party in order to file the suit at Chennai. With regard to the second Respondent/Plaintiff, it is stated that the said entity is not the registered proprietor of the trademark and, therefore, the second Respondent/Plaintiff is not entitled to sue for infringement. The Applicant also asserts that he is the registered proprietor of the trademark “ISWARYA KARUTHARITHAL MAIYAM”’ in Tamil and is, therefore, entitled to the benefit of Section 28(3) of the Trade Marks Act, 1999 (the Trade Marks Act). Consequently, it is contended that the suit is not maintainable before this Court. The Applicant relies on the judgment of the Hon’ble Supreme Court in Indian Performing Rights Society v. Sanjay Dalia and Another (2015) 10 SCC 161(Indian Performing Rights Society), wherein at paragraphs 17 to 24, the Hon’ble Supreme Court dealt with the scope of Section 134 of the Trade Marks Act. The Applicant contends that Sub-section 2 of Section 134 enables the filing of a suit for infringement of a registered trademark or a suit relating to any right in a registered trademark at the place of residence or business of the plaintiff provided the plaintiff actually resides or carries on business at such place. By relying upon the aforesaid paragraphs, the Applicant contends that the Hon’ble Supreme Court laid down categorically that Section 134 does not enable a person having a principal place of business at a particular place, where the cause of action also arose, to sue at a distant place where a subordinate office is situated although no part of the cause of action arose at such place. By applying the said judgment to the facts of this case, the Applicant points out that the certificate of the chartered accountant at page 32 of the typed set of papers filed by the Respondents/Plaintiffs indicates the annual turn over for various financial years at Coimbatore, Tiruppur, Palaghat, Erode and Salem but not at Chennai. Similarly, with reference to page 316 of the said typed set of papers, it is contended that the principal place of business is at Coimbatore.

3. The Applicant also asserts that the Respondents/Plaintiffs have intentionally provided an address in Tiruppur as his place of residence in spite of knowing fully well that his place of residence is also at Coimbatore. On the merits of the dispute, the Applicant asserts that he is entitled to use the mark in question as the registered proprietor thereof and also by virtue of the Respondents/Plaintiffs’ acquiescence in the use of the said mark by the Defendant.

4. These contentions are refuted by the Respondents/Plaintiffs. With specific reference to Section 134(2) of the Trade Marks Act, the Respondents/Plaintiffs state that a suit can be filed at the place where the person instituting the suit, or, any of them if there are mo