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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
ITC Limited Kolkata & Others – Appellants
Versus
Britannia Industries Ltd, Ravichandran Rajagopal West Bengal, India – Respondent
A. No. 3314 of 2023 in C.S.(Comm Div). No. 153 of 2023
Decided On : 14-07-2023
reject the plaint - Urgent Interim Relief - Commercial Courts Act - Failure to comply with pre-mediation settlement under Section 12 A - Suit not instituted by a competent person - Lack of Jurisdiction - Trade Marks Act, Copyright Act - Section 134(2), Section 62(2) - The plaintiff sought urgent interim relief due to infringement by the defendant. The defendant challenged the suit on grounds of failure to comply with pre-mediation settlement, lack of authority of the person instituting the suit, and lack of jurisdiction. The court analyzed the urgency of the suit, authority of the plaintiff's representative, and jurisdiction based on the provisions of the Trade Marks Act and Copyright Act. The court found that the suit was urgent, the plaintiff's representative had the authority to institute the suit, and the court had jurisdiction over the matter. Therefore, the application seeking rejection of the plaint was dismissed.
Fact of the Case:
The plaintiff sought urgent interim relief due to infringement by the defendant. The defendant challenged the suit on grounds of failure to comply with pre-mediation settlement, lack of authority of the person instituting the suit, and lack of jurisdiction.
Finding of the Court:
The court found that the suit was urgent, the plaintiff's representative had the authority to institute the suit, and the court had jurisdiction over the matter. Therefore, the application seeking rejection of the plaint was dismissed.
Issues: Urgent interim relief, authority of the plaintiff's representative, jurisdiction under Trade Marks Act and Copyright Act
Ratio Decidendi: The court analyzed the urgency of the suit, authority of the plaintiff's representative, and jurisdiction based on the provisions of the Trade Marks Act and Copyright Act.
Final Decision: The application seeking rejection of the plaint was dismissed.
JUDGMENT
(Prayer: Judge''s summon is filed under Order XIV Rule 8 of Original Side Rules read with Order 7 Rule 11 and Section 151 CPC to reject the plaint.)
1. The plaintiff who has approached this Court contemplating the grant of an urgent interim relief has been checkmated by the defendant, a giant in the consumer market; on a supposed plea that the suit as filed requires to be rejected on two grounds set out in the petition which is detailed herein below:
(a)That the suit does not contemplate an urgent interim relief therefore failure to comply with the provisions of Section 12 A of the Commercial Courts Act of a pre-mediation settlement render the suit liable to be rejected; and
(b)The suit is not maintainable as it has neither been instituted by the plaintiff nor by an authorised person who has been specifically conferred with the power to institute the suit on behalf of the Company. This Contention is based on the following premise:
(i) The specific power dated 17.11.2020 granted to the agent is only to deal with activities of the Company which relate to the Regional Office within the overall parameters of the Company''s policy and its day to day affairs. Since the suit did not pertain to the regional office of the respondent at Chennai the suit as instituted is not maintainable.
(ii) The power to initiate and defend legal proceedings is given only in respect of the matters set out in the deed. With these averments the application has been filed.
2. However, during the course of arguments the defendant / applicant has also questioned the Jurisdiction of the Court on the ground that the same has been filed only under Order IV Rule 1 CPC, Section 134 (2) of the Trade Marks Act and Section 62 (2) of the Copyright Act besides other Sections of these two Acts and therefore the suit being based on cause of action the institution of the suit without obtaining leave to sue is not maintainable.
3. Before dilating on the application and its contents the sequence of events from the institution of the suit till the filing of the application to reject the plaint has to necessarily be set out how a clever defendant can obstruct a plaintiff from his attempts to get an interim order and then use the provision of Section 12 A of the Act to its advantage. The interim applications were posted as a “lunch motion” case on 22.06.2023, without filing a caveat and even before the Court could take up the applications and order notice, the learned senior counsel for the defendant had taken notice and sought time to file their counter on 30.06.2023. The plaintiff was directed to serve the papers on the defendant and the matter was posted to 30.06.2023 for counter and defendants were directed to file their counter to the original applications by 28.06.2023. The papers are also stated to have been given immediately. On 30.06.2023, once again an adjournment was requested and the matter was listed finally on 07.07.2023 which was once again adjourned to 10.07.2023. The defendant / applicant had filed their counter in the interlocutory applications and simultaneously filed this application to reject the plaint on 30.06.2023. The above narrative is placed only to put in perspective the fact the even before the Court could apply its mind to the urgency in the application or the need for interim relief, the defendant had sought two adjournments for filing its counter and has then come forward with the application. If the defendant were keen on a settlement, they could have, on the very first hearing, expressed their desire to have the matter sent to the State Legal Services Authority for mediating the dispute. Infact, nowhere in the application has the defendant expressed their desire for settlement. On the contrary, the attempt is to try to have the plaintiff''s case dismissed at the threshold. The plaintiff has approached this Court with a case that the defendant who was all along wrapping
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