IMPORTANT POINT
Meaning ascribed to expression ‘carrying on business’ in Section 20(a) CPC, has been held to be applicable even to a plaintiff.

Valmiki J. Mehta, J.—(i) These suits are filed by the plaintiff against the defendants seeking permanent injunction restraining the infringement of trade mark, passing off and damages etc.

(ii) In both the suits i.e CS(COMM) Nos.53/2015 and 54/2015, the plaintiff is a company registered under the Companies Act, 1956 and it has no office in Delhi be it a principal office or a head office or a registered office or even a branch office. Plaintiff’s address as per the memo of parties is at Mumbai.

(iii) Defendants in CS(COMM) No.53/2015 as per the address given in the memo of parties in the plaint are situated outside Delhi i.e at Gurgaon and the defendants in CS(COMM) No.54/2015 are situated, as per the address contained in the memo of parties, at Bengaluru in Karnataka.

2. In both the suits, territorial jurisdiction of this Court is claimed on the basis of plaintiff’s carrying on business in Delhi because plaintiff is selling its services in Delhi through the internet. The trade mark and the service mark of the plaintiff is ‘BOOKMYSHOW.COM’. The relevant para of the plaint with respect to the existence of territorial jurisdiction of this Court is para 34 of the plaint and this para 34 reads as under:-

“34. This Hon’ble Court also has jurisdiction to entertain and try the present suit under section 134(2) of the Trade Marks Act, 1999 on account of the fact that the Plaintiff carries on business within the jurisdiction of the Hon’ble Court.

The Plaintiff’s ticketing services are availed by consumers in Delhi, for events, performances and shows held in Delhi. Contracts and/or transactions are entered into between the Plaintiff and its customers, which are being concluded in Delhi. Therefore the essential part of the business of the Plaintiff, insofar as its transactions with customers in Delhi are concerned, takes place in Delhi. Therefore this Hon’ble Court has jurisdiction to entertain the present suit.

It is submitted that the subject matter of the suit relates to the infringement and passing off of the Plaintiff’s trademark and is a ‘commercial dispute’ as defined in section 2(1)(c)(xvii) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Ordinance, 2015.

The plaintiff has not filed any other similar suit or any other proceedings against the Defendants either before this Hon’ble Court or any other Court.”

3. Before the commencement of dictation of this judgment, and even right at the inception, I put it to the counsel for the plaintiff that it is advisable, of course subject to discretion of the plaintiff, that plaintiff can amend the suit so that the territorial jurisdiction is claimed on the ground of arising of part of cause of action in Delhi not on account of Section 134 of the Trade Marks Act, 1999 of ‘carrying on business’ by the plaintiff but because the defendants are carrying on their businesses at Delhi under the impugned trade marks ‘BOOKMYOFFER.COM’ and ‘BOOKMERASHOW.COM’ in CS(COMM) Nos.53/2015 and 54/2015 respectively, and as a result of which impugned activities of the defendants would be at Delhi, and hence this Court thus would have territorial jurisdiction with reference to the cause of action of the activities of the defendants and not because of the plaintiff’s ‘carrying on business’ in Delhi as per Section 134 of the Trade Marks Act, 1999. Learned counsel for the plaintiff however states that plaintiff does not seek to so amend the suit plaint and this Court can proceed ahead to decide the issue of territorial jurisdiction and places reliance upon the judgment passed by a Division Bench of this Court in the case of World Wrestling Entertainment Vs. Reshma Collection 2014 SCC OnLine Del 2031 and paras 17, 18 and 24 (wrongly numbered as 21 in the judgment) thereof, and which paras read as under:-

“17. The main issue before us is one of considering as to whether on the basis of the averments made in the plaint, the appellant/ plaintiff carries on busin