FAO (COMM) 116/2022

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$~10

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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+

FAO (COMM) 116/2022 & CM APPL. 34735/2022

DEVARPAN FOODS PRIVATE LIMITED

..... Appellant

Through:

Mr. Neeraj Malhotra, Sr. Adv. with

Mr. Satish Kumar, Mr. Umesh

Mishra, Mr. Vishal Patel, Mr. Nimish

Kumar & Mr. Nishant Matta, Advs.

versus

SUKHWANT SINGH & ORS.

..... Respondents

Through:

Mr. N. Mahabir & Mr. P.C. Arya,

Advs.

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU

HON'BLE MR. JUSTICE AMIT MAHAJAN

O R D E R

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17.08.2022

VIBHU BAKHRU, J. (ORAL)

1.

This is an application filed by the appellant seeking condonation of

delay of 115 days in filing the present appeal.

CM APPL. 34736/2022 (for condonation of delay)

2.

The learned counsel appearing for the respondents fairly states that

part of the delay would be covered by the blanket orders passed by the

Supreme Court in Re: Cognizance for Extension of Limitation: Suo Motu

Writ Petition (Civil) No.3/2021.

3.

He also states that he has no objection if the delay is condoned.

4.

In view of the above, the application is allowed.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003170

FAO (COMM) 116/2022

Page 2 of 11

5.

The appellant has filed the present appeal impugning an order dated

31.01.2022, whereby the learned Commercial Court has partly allowed the

application filed by the respondents (defendants) under Order VII Rules 10

and 11 of the Code of Civil Procedure, 1908 (hereafter ‘the CPC’).

FAO (COMM) 116/2022 & CM APPL. 34735/2022

6.

The learned Commercial Court accepted that it had no jurisdiction to

entertain a suit for relief of passing off on a finding that no part of a cause of

such action had arisen within the territorial jurisdiction of the court.

7.

The appellant (plaintiff) had filed a suit under Sections 134 and 135

read with Section 27(2) of the Trademarks Act, 1999 as well as under

Section 51 of the Indian Copyright Act, 1957, inter alia, for permanent

injunction, restraining, passing off, infringement of copyright, rendition of

accounts, damages etc. against the respondents (defendants).

8.

The appellant claims that it is, inter alia, engaged in the business of

distribution, trading and marketing of snacks, sweets and namkeens under

the trademark

. The appellant had also applied for registration

of the trademark DEVARPAN under various classes. However, the

respondents have opposed the same.

9.

The appellant had also applied for the artistic work DEVARPAN

under the Copyright Act, 1957 and claims that the same was registered in its

favour, under Registration No. A-15308/2019.

10.

The appellant alleges that the respondents (arrayed as defendants in

the suit) have dishonestly adopted a deceptively similar trademark “DEV-

ARPA (Device)”, which is deceptively similar to the trademark used by the

appellant (plaintiff).

11.

The appellant’s registered office is located within the territorial

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003170

FAO (COMM) 116/2022

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jurisdiction of the learned Commercial Court. In its plaint, the appellant

(plaintiff) had also alleged that the respondents (defendants) were selling

their goods under the deceptively similar trademark in various markets,

which are located within the territorial jurisdiction of the learned

Commercial Court.

12.

The learned Commercial Court accepted that an action for

infringement of copyright would be maintainable as the appellant (plaintiff)

was entitled to file such a suit before a court exercising jurisdiction in

respect of the area where its registered office is located. However, the court

did not accept that any cause of action for passing off had arisen within the

territorial jurisdiction of the court. This was, principally, for the reason that

the appellant (plaintiff) had not produced any material to substantiate its

allegations that the respondents (defendants) were selli