Neutral Citation Number : 2023:DHC:3082

CRP-IPD 5/2023

Page 1 of 15

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CRP-IPD 5/2023

M/S S. S. HOSPITALITY

..... PETITIONER

Through:

Mr. Sudarshan Kumar Bansal,

Mr.Nikhil Sonker and Mr.Vaibhav Jairath,

Advs.

versus

M/S SAGAR RATNA RESTAURANTS PVT. LTD

..... RESPONDENT

Through:

Mr.

Sushant

Mahapatra,

Ms.Shruthi

Upparpalli

and

Mr.Rahul

Kumar, Advs.

CORAM:

HON'BLE MR. JUSTICE C.HARI SHANKAR

J U D G M E N T (O R A L)

%

04.05.2023

1.

This is a revision petition under Section 115 of the Code of

Civil Procedure, 1908 (CPC), assailing order dated 1^st March 2023,

passed by the learned District Judge (Commercial Court) (―the learned

Commercial Court‖), whereby an application under Order VII Rule 11

of the CPC, filed by the petitioner as the defendant before the learned

Commercial Court, , has been dismissed. Inasmuch as the application,

which stands dismissed by the impugned order, contested the

maintainability of the suit instituted by the respondent-plaintiff on the

ground of territorial jurisdiction, Mr. Bansal, learned Counsel for the

petitioner-defendant frankly acknowledges that the application ought

to have been filed under Order VII Rule 10, rather than Order VII

Rule 11.

Digitally Signed

By:KAMLA RAWAT

Signing Date:08.05.2023

12:23:20

Signature Not Verified

Neutral Citation Number : 2023:DHC:3082

CRP-IPD 5/2023

Page 2 of 15

2.

Nonetheless, as the issue in question is purely one of law, the

Court is not inclined to take any serious view of the misstating of the

provision under which the application was formally filed.

3.

The issue before this Court is whether CS (Comm) 107/2023

(Sagar Ratna Restaurants Pvt. Ltd. v. S.S. Hospitality), as instituted

by the respondent against the petitioner, was maintainable before the

learned Commercial Court at Delhi. Mr. Bansal‘s contention, which

stands rejected by the learned Commercial Court, is that the

respondent-plaintiff could not have filed the suit at Delhi, but was

required to file the suit at Chandigarh. For this purpose, Mr. Bansal

relies on para 14 of the decision of a Division Bench of this Court in

Ultra Home Construction Pvt. Ltd. v. Purushottam Kumar

Chaubey¹, which, to the extent relevant, reads thus:

―14.

It is evident from the above observations that the

interpretation given to the expression ―carries on business‖ in the

context of a defendant under section 20 of the Code has also been

employed in the context of a plaintiff under the said sections

134(2) and 62(2). Thus, in addition to the places where suits could

be filed under section 20 of the Code, the plaintiff can also institute

a suit under the Trade Marks Act, 1999 and the Copyright Act,

1957, as the case may be, by taking advantage of the provisions of

section 134(2) or section 62(2), respectively. Both the latter

provisions are in pari materia. Under these provisions four

situations can be contemplated in the context of the plaintiff being

a corporation (which includes a company). First of all, is the case

where the plaintiff has a sole office. In such a case, even if the

cause of action has arisen at a different place, the plaintiff can

institute a suit at the place of the sole office. Next is the case where

the plaintiff has a principal office at one place And a subordinate or

branch office at another place and the cause of action has arisen at

the place of the principal office. In such a case, the plaintiff may

sue at the place of the principal office but cannot sue at the place of

the subordinate office. The third case is where the plaintiff has a

1 (2016) 227 DLT 320 (DB)

Digitally Signed

By:KAMLA RAWAT

Signing Date:08.05.2023

12:23:20

Signature Not Verified

Neutral Citation Num