$~19 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA-IPD 7/2022 & CM APPL. 378/2021 CORONA REMEDIES PVT. LTD. ..... Appellant Through: Mr. Vikas Kheera, Mr. Vishal Sharan and Mr. Ved Prakash, Advs.

versus UMAC PHARMACEUTICALS & ORS. .... Respondents Through: None CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR J U D G M E N T (ORAL)

% 10.08.2023

1. This is a first appeal under Section 96 of the Code of Civil Procedure 1908 (CPC), directed against the judgment dated 5 September 2020 passed by the learned Additional District Judge (―the learned ADJ‖) South-East District, Saket. By the impugned judgment, the learned ADJ has returned CS(COMM) 328/2019 (Corona Remedies Pvt. Ltd. v. Umac Pharmaceutical & Others) to the appellant-plaintiff for being presented before the appropriate court, having territorial jurisdiction to deal with the plaint.

2. The memo of parties in the suit reads thus:

―MEMO OF PARTIES

1. Corona Remedies Pvt. Ltd.

Corona House, C-Mondeal Business Park, Near Gurudwa`ra, S.G. Highway Thaltej, Ahmedabad-380059 Gujarat, India … Plaintiff Versus

1. Umac Pharmaceuticals Khasra No. 93/10, Vill. Mundka, Nangloi, Delhi. …. Defendant No. 1

2. Hemkunt Medical Store, 332/4 & 5, Govindpuri Kalkaji, New Delhi-110019 …. Defendant No. 2

3. Athens Life Sciences Mauza Rampur Jattan, Nahan Road, Kala Amb, District Sirmour Himachal Pradesh-173030. …. Defendant No. 3‖

3. The plaintiff and the defendants before the learned ADJ being the appellant and the respondent before this Court, I prefer to refer to them as per their status before me.

4. Summons were issued in the suit, by the learned ADJ, on 25 July 2018, on which date an ex parte ad interim order was passed in favour of the appellant and against the respondents. On 16 August

2018, it was noted that all respondents had been duly served.

5. On 24 September 2018, the respondents were proceeded ex parte. They remained ex parte till the passing of the impugned judgment. As such, there was no response from the respondents, and the averments in the plaint remained unrebutted.

6. The appellant is engaged in the manufacture of pharmaceuticals and medicinal veterinary preparations. The suit dealt with a combination drug, manufactured by the appellant, comprising Rabeprazole Sodium and Domperidone SR sustained release, sold under the registered trade mark MAC-RD.

7. The appellant alleged that, by using the mark MAC-DSR in respect of a similar combination of Pantoparazole Sodium (EC) and Domperidone SR, the respondents were infringing the appellant‘s registered trade mark. As such, the appellant sought a decree of permanent injunction, restraining the respondents from using the mark MAC-DSR or any other mark which was deceptively similar to the appellant‘s registered mark MAC-RD in respect of any pharmaceutical preparations.

8. The respondents, as already noted, were set ex parte. The only witness who testified was Mr. Bhupender Kumar, the attorney of the appellant, as PW-1. Mr. Bhupender Kumar filed his affidavit in evidence and also relied on certain documents.

9. By the impugned judgment, the learned ADJ has held the appellant‘s suit to be bad for want of territorial jurisdiction and has, therefore, returned the suit to be presented before a competent court. The reasoning of the learned ADJ in this regard is to be found in paras

19 to 25 of the impugned judgment which read thus:

―19. It is evident from the perusal of the aforesaid section pertaining to territorial jurisdiction of the Court to try such suit that a suit for infringement or passing off can be instituted before a District Court of the place where the plaintiff is residing or carrying on business or personally works for gain.

20. In the present case, the plaintiff is carrying its business at Ahmedabad, Gujarat.

21. The defendant No.1 is carrying its business or working for gain in Nangloi, Delhi. The defendant No.3 is carrying its business or working for gain in District Sirmour, Himachal Pradesh.

22. The defendant No.2 is a medical store. The plainti