J U D G M E N T

% 15.05.2023 I.A.21995/2022 (under Order VII Rule 11 of the CPC)

1. This is an application preferred by the defendant Westcoast Pharmaceutical Works Limited under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), seeking rejection of CS (COMM)

101/2022, instituted by the plaintiff Astrazeneca AB.

2. I have heard Mr. Vikas Khera, learned Counsel for the defendant-applicant and Mr. Pravin Anand, learned Counsel for the plaintiff-non applicant, at length.

3. Mr. Khera predicates his case, in this application, on three grounds.

(I) Want of pecuniary jurisdiction

4. Mr Khera first contends that the suit is bad for want of pecuniary jurisdiction, as it is required to be filed before the District Court. Mr. Khera submits that the suit is in the nature of a quia timet action, premised on a mere apprehension that the defendant would launch the allegedly infringing product in the market. Relying on the judgment of a Coordinate Single Bench of this Court in Toni & Guy Products Ltd. v. Shyam Sunder Nagpal1, Mr. Khera submits that a claim for damages is not maintainable in a quia timet suit, founded on mere apprehension. Inasmuch as, in the present plaint, the invocation of the jurisdiction of this Court has been sought to be justified, by the plaintiff, solely on the basis of the damages of ₹ 2,00,01,000/- claimed in the suit Mr. Khera submits that, as no damages can be sought in a suit such as the present, the suit would have to be filed before the District Court as, if the claim for damages is excluded, the suit would stand valued only at ₹ 1,000/-.

5. The objection is without substance. Toni & Guy1, in para 11, clearly notes that, in that case, ―admittedly the defendant has not used the mark and has not invaded the proprietary rights of the plaintiffs in the trademark by either infringing the same or passing off‖. As against this, in the present case, there is a specific allegation that the defendant has started manufacture and is already selling, or in the process of commencing sale, of the infringing products in the market. No more need be averred, and no more need be seen. Order VII Rule 11 is premised on the assertions in the plaint, to be taken on demurrer

1 2007 (2014) DLT 309

as correct. Viewed thus, the present case cannot be likened to Toni &

Guy1. The analogy is obviously misguided.

6. No case for rejecting the present suit under Order VII Rule 11 for want of pecuniary jurisdiction, therefore, exists.

(II) Want of territorial jurisdiction

7. Mr. Khera next alleges that the suit is bad for want of territorial jurisdiction, as the defendant is located outside Delhi and Plaintiff 1 is in Sweden. Though Plaintiff 1 has a subordinate office, Plaintiff 2, in Delhi, Mr. Khera has predicated his challenge solely on Section 20 of the CPC.

8. In the first place, a defendant cannot seek dismissal, or rejection, of a suit on the ground of want of territorial jurisdiction. Order VII Rule 10 would apply in such a case; nor Order VII Rule 11, and the Court could only be asked to return the suit for presentation before the proper forum.

9. I may note, here, that Mr. Khera, too, did not advance any arguments on the aspect of territorial jurisdiction, as a result of which there was no response from Mr. Anand, either, on that score.

10. The prayer in the application is for rejection of the plaint. Such a prayer cannot be sought on the ground of want of territorial jurisdiction, as want of territorial jurisdiction stands specifically covered by Order VII Rule 10. I do not, therefore, propose to return any finding on the said prayer.

11. Should the defendant so choose, it is at liberty to move a separate application under Order VII Rule 10 of the CPC. Should such an application be moved, it would be decided on its own merits. I have not applied my mind to the issue, as it was never argued even by Mr. Khera, and do not, therefore, return any finding thereon, one way or the other.

(III) The Aloys Wobben controversy

12. The second ground on