$~26 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO (COMM) 318/2025 M/S AWADH OILS PRIVATE LIMITED .....Appellant Through: Mr. Rajul Shrivastav and Ms.

Nayan Gupta, Advs.

versus SHRI KAUSHAL GOYAL & ORS. .....Respondents Through: Ms. Swathi Sukumar, Sr. Adv. with Ms. Tanzeela Farheen and Ms. Vidhi Jain, Advs. CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR HON'BLE MR. JUSTICE OM PRAKASH SHUKLA JUDGMENT (ORAL)

% 03.02.2026 C. HARI SHANKAR, J.

1. The appellant instituted CS (Comm) 422/2025, “the suit” hereinafter against the respondent before the learned District Judge (Commercial Court)-02, “the learned Commercial Court” hereinafter North-West District, Rohini, alleging that the respondents were using trade marks of which “KALA GHODA” was the sole or the prominent part for mustard oil, edible oils and allied products, and were, thereby, passing off their goods as those of the appellant.

2. The appellant has no registration, under Section 23 of the Trade Marks Act, 1999, “the Act” hereinafter, for the mark KALA GHODA, whether in word or device form. The respondent, on the other hand, is the proprietor of registrations of the mark KALA GHODA, though the appellant has filed applications for removal of the said marks from the Register of Trade Marks, under Section 57 of the Act.

3. No proceeding for infringement lies against a registered trade mark, as the very definition of infringement, in Section 29 of the Act, envisages the infringer being neither the proprietor, nor the permissive user, of the infringing trade mark. This position also stands settled by various judicial pronouncements, including S. Syed Mohideen v. P.

Sulochana Bai, (2016) 2 SCC 683

4. The suit, therefore, would lie only for passing off, the right to sue for which stands saved by Section 27(2) of the Act.

5. The appellant filed, with the appeal, an application for interim injunction under Order XXXIX of the Code of Civil Procedure 1908, praying that the respondents be restrained, pending disposal of the suit, from using the mark KALA GHODA.

6. By order dated 15 September 2025, the learned Commercial Court has held that it has, prima facie, no territorial jurisdiction to entertain the suit and has proceeded, further, to reject the prayer for interim injunction both on the ground that it has, prima facie, no territorial jurisdiction, as well as on merits.

7. On the issue of whether, at the Order XXXIX stage, a Court can proceed to return findings on merits, having already opined that it has no territorial jurisdiction, we have no doubt that it cannot. Having held, prima facie, that it has no territorial jurisdiction, if a Court proceeds to examine the merits of the case, it would amount to exercising a jurisdiction which, even as per its own assessment, it prima facie does not possess. A Court cannot, to our mind, consciously act coram non judice.

8. On whether the Court can, having held that it prima facie has no territorial jurisdiction, dismiss the application for interim relief on that basis, a Division Bench of this Court has, in para 23 of its decision in Allied Blenders & Distillers Pvt Ltd v. R.K. Distilleries Pvt Ltd, (2017) 69 PTC 493 (Del-DB), held that it can:

“23. ….To put it differently, while a plaintiff may succeed in demonstrating, for the purposes of Order VII Rule 10 CPC that this court has territorial jurisdiction and that the plaint ought not to be returned, he may fail in obtaining an order of interim injunction on the ground that the plaintiff's entitlement is itself shaky because the issue of territorial jurisdiction is highly debatable and prima facie not tenable…..” (Emphasis supplied)

9. We are required, therefore, only to examine, in the first instance, whether the learned Commercial Court was correct in its view that it did not, prima facie, have territorial jurisdiction. If it was, the decision to reject the application under Order XXXIX would be entitled to be upheld even on that sole ground.

10. Having heard learned Counsel for the parties and perused