In a case of infringement and passing off under Section 105/106 of the Trade and Merchandise Marks Act, 1958, the cause of action partly or wholly arises in a given jurisdiction only if the defendant is proved to have directly made sale of the goods under the impugned trade mark within the jurisdiction of the court, not to an individual consumer but to a distributor, wholesaler, or retailer, and that such sale should be at a commercial scale.

1. Messrs Mohan Meakin Breweries Limited plaintiff-respondent (hereinafter referred to as the plaintiff) sought against Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Limited (hereinafter referred to as the defendant) Permanent injunction and rendition of accounts for infringement and passing off under Section 105/106 of the Trade and Merchandise Marks Act, 1958. It was averred in the plaint that apple juice manufactured by the defendant Corporation was sold under the impugned trade mark Golden Crown in Ludhiana and therefore, Ludhiana Courts had the jurisdiction to entertain and try the suit in question. The defendant Corporation challenged the jurisdiction of Ludhiana Court and the trial Court, therefore, framed the following preliminary issue for decision at the threshold:

"Whether this Court has jurisdiction to try this suit?".

2. The plaintiff examined Gurdip Singh and Kamlesh Kumar Dhamija as P.W., 1 and P.W. 2 respectively. Kamlesh Kumar Dhamija, who claimed himself to be the Assistant Manager of Trade Links, Ludhiana, stated that his company was the distributor of the goods manufactured by the plaintiff-company including apple juice under the trade mark Gold Coin ; that in pursuance of the direction of the plaintiff-company, he had purchased 6 bottles of Golden Crown apple juice from Deep Store at Ludhiana who issued him cash memo marked A . One of the said six bottles was produced as Exhibit P.1. He further stated that other shopkeepers also sold Golden Crown apple juice in July, 1976. In his cross-examination he stated that Vinodi Lal was the stockist of Golden Crown, later on he further stated that Brewerges (Beverages?) were the stockist of Golden Crown apple juice. He was unable to say as to whether the sale at Ludhiana of Golden Crown apple juice was two bottles or two lac bottles. He admitted that he had never paid visit to the office of Amrit Beverages nor he had met any partner or director or shareholder or proprietor of Amrit Beverages. He further stated that he did not know as to who were the stockists of various breweries at Ludhiana.

3. Gurdip Singh P.W. 1 stated that on 20th July, 1978, a customer had purchased six bottles of Golden Crown apple juice and the cash memo marked A had been issued by his brother. He produced carbon copy of the cash memo which was marked B . He further stated that he used to get juice manufactured by the defendant from their distributor Amrit Beverages. The cash memo marked C and D are said to have been issued by the said distributors. In cross-examination, he stated that he was not a registered dealer in the city of Ludhiana. He also did not know as to whether Amrit Beverages were the registered dealers. He admitted that in the cash memo book brought by him in Court, there was no other cash memo in which Golden Crown apple was specifically mentioned. He further added that the brand name of the juice is mentioned only it a customer specifically asks the same to be mentioned. The customer who had purchased apple juice marked P. 1 had specifically asked the brand name to be mentioned and therefore, it was mentioned. He admitted that the brand name for the apple juice purchased against cash memo A is Gold Crown and not Golden Crown . However, he added that what he had sold was Golden Crown to that customer. He did not produce the ledger book. He admitted that he kept no record as to how much quantity of different juices he had sold in the month of July, 1978. He stated that it was his brother who knew everything about the business.

4. The defendant led no evidence in rebuttal.

5. The trial Court from the aforesaid material concluded on the strength of a single bench decision of Lahore High Court in Firm Bhagwan Das V/s. Watkins Mayor and Co. AIR 1947 Lah 289 that Ludhiana Courts had the jurisdiction to try the suit.

6. In my opinion, the decision relied upon by the learned trial Judge is rather to the contrary. Cornelus, J. had observed as follo