DELHI HIGH COURT
Kailash Gambhir, J
Lakhan Pal Shyam Kumar —Plaintiff
versus
Ram Prasad Gupta and Anr. —Defendants
C.S. (OS) 2208 of 2006
Decided on 24.5.2012

IMPORTANT POINT
The intendement of Section 62 of the Copyright Act and Section 134 of the Trade Marks Act is to enable the plaintiff to initiate litigation at a forum convenient to it. It is not intended to allow the plaintiff to choose a territorial forum which is not convenient to either of the parties.

Headnote:Trade Mark Act, 1999—Section 134 and Section 62—Copyright Act—Suit for permanent injunction and rendition of accounts alleging infringement of plaintiff and trademark—Territorial Jurisdiction—Jurisdiction of Court at Delhi pleaded and passed on plea of “passing off”—Plea that defendant had applied for registration of his trade mark in Delhi would be irrelevant and was not a part of cause of action—Registration of plaintiff’s trade mark was for States of Uttar Pradesh and Madhya Pradesh and Delhi—However where only goods were being sold would not be itself mean that plaintiff or defendant carried on business at that place—Neither the address of plaintiff was of Delhi nor plaintiff claimed having any subordinate or corporate officer or agent in Delhi—Plaintiff could not invoke jurisdiction of Court at Delhi either under Section 134 or Section 62 of the Acts—Plaintiff had not placed any invoice on receipts showing that it did business in Delhi—Defendant earlier having filed assignment injunction suit in UP alleging defendant carrying business throughout India would not help plaintiff in present suit as general plea of defendant could not be treated to be a particular admission—Court at Delhi did not have territorial jurisdiction.

       Held: The short controversy to be decided at this juncture in the present case is that whether this court has territorial jurisdiction to entertain the present suit or not. As per the case set up by the plaintiff this court has the territorial jurisdiction to try and entertain the present suit as both the plaintiff and the defendants are carrying on business in Delhi and the defendants are committing the acts of infringement and passing off within the jurisdiction of this court. The plaintiff has also claimed that by virtue of fact that the plaintiff obtained registration of their trademark Delhi and also that the defendant No. 1 has filed application for registration of the impugned trade mark in Delhi, therefore this court has the territorial jurisdiction to entertain the present suit. The plaintiff has invoked Section 134 of the Trade Marks Act, 1999 and Section 62 of the Copyright Act 1957. (Para 7)

       It is no more res integra that Section 134 of the Trade Marks Act which .is similar in its sweep to Section 62 of the Copyright Act gives the Plaintiff the advantage of filing the suit at a place convenient to him instead of taking the dispute to the doorstep of the defendant. Section 134 which is available to the plaintiff for filing a suit wherein he actually or voluntarily resides or carries on business or personally works for gain is a forum in addition to Section 20 of the CPC, Dhodha House v. S.K Maingi, (2006) 9 SCC 41. (Para 8)

       Hence it is manifest that where only the goods are being sold would not mean that the plaintiff or the defendant carries on business at that place. In the case hand, the plaintiff has averred that the plaintiff as well as the defendant carries on business in Delhi, however no material has been placed on record by the plaintiff even to prima facie substantiate the said claim. Neither the address of the plaintiff is of Delhi nor has the plaintiff anywhere claimed having any subordinate or corporate office or any agent in Delhi. Thus in the umbrella of the abovesettled legal position, it is clear that the plaintiff cannot invoke the jurisdiction of this court either under Section 134 of the Trademarks Act or Section 62 of the Copyright Act. (Para 10)

       The plaintiff has also in the plaint made general statements that they have made an enviable reputation in the market and that both the plaintiff and the defendant operate in the same line of businesses and markets. The plaintiff has nowhere stated as to what are the markets, which territory is their area of dealing in their products, what kind of business operations are taking place in Delhi or where are the alleged infringing goods being sold by the defendant in Delhi or anywhere else. In the documents, the plaintiff has placed on record the copy of the Partnership Deed, the registration certificate of its trademark, the packaging of its product and the alleged infringing copy of the defendants product, copy of the legal notice issued by the plaintiff, copy of the plaint in OS No. 2/2006. filed by the defendants at Chitrakoot, Income Tax Returns and sale receipts of certain buyers within the territory of Mahoba, Uttar Pradesh. The plaintiff has not placed on record any invoice or receipt showing that it does business within the territory of Delhi. More so, the plaintiff has not placed on record any invoice indicating the fact that the defendants infringing goods are sold within the territory of Delhi. In the absence of any material placed on record to substantiate its averments made in the plaint, the argument of the counsel for the plaintiff that the cause of action has arisen within the territorial jurisdiction of this court cannot be conceded to. Bald averments in the plaint, not based on any cogent material cannot form the basis to raise a presumption of jurisdiction by this Court, which it otherwise does not have. A measured perusal of the plaint in the present case does not advance the case of the plaintiff as it is nothing but a spate of vague assertions. devoid of any pith or substance, indefensible by any material which does not fulfill the requirement of law. (Para 11)

       This Court also does not find force in the argument of the counsel for the plaintiff that in the suit for infringement filed by the defendant against the plaintiff herein at Chitrakoot, U.P the defendant’ has itself stated that the defendant does business on all India basis and thus would include the territory of Delhi as the argument is rather far fetched so as to read into a general statement to be a particular admission. It is also pertinent to mention here that the plaintiff herein had moved an application for amending para 24 of the plaint relating to territorial jurisdiction reproduced herein above so as to include the said pleading, but the said application was dismissed by this Court vide orders dated 3.2.2011. The judgments cited by the counsel for the plaintiff in this regard will not be applicable to the facts of the case at hand as the same reiterate the legal position discussed hereinabove. (Para 12)