JUDGMENT

Vibhu Bakhru, J.

1. The appellant (plaintiff) has filed the present appeal impugning an order dated 05.08.2021 (hereafter `the impugned order'), passed by the learned District Judge, Commercial Court-II, Shahdara, Karkardooma Courts, Delhi (hereafter `the Commercial Court') in CS(COMM) No.132/2021, whereby the respondent's application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereafter `the CPC') was allowed and the plaint filed by the appellant was directed to be returned. The learned Commercial Court, on a reading of the plaint along with its documents, found that the appellant had failed to establish a prima facie case in respect of the territorial jurisdiction of the Court.

2. The respondent (defendant) had also sought dismissal of the suit under Order VII Rule 11(d) of the CPC on the ground that the appellant had instituted the said suit without complying with the mandatory provisions of pre-institution mediation under Section 12A of the Commercial Courts Act, 2015. The Commercial Court did not accept the said contention as the appellant had sought urgent relief. Accordingly, the said prayer of the respondent was rejected. The respondent has preferred cross-objection, assailing the impugned order to the extent the learned Commercial Court has rejected its prayer for rejection /dismissal of the plaint on the aforesaid ground.

3. The controversy to be addressed in the present appeal is two-fold. First, whether the impugned order directing return of the plaint for want of territorial jurisdiction is erroneous; and, second, whether the plaint is liable to be rejected on account of failure on part of the appellant to exhaust the remedy of pre-institution mediation as required under Section 12A of the Commercial Courts Act, 2015.

Return of Plaint under Order VII Rule 10 CPC

4. The appellant had filed the suit [being CS(COMM) No.132/2021 captioned Chandra Kishore Chaurasia v. R.A. Perfumery Works Private Ltd.] seeking a decree of permanent injunction restraining infringement of its copyright, trademark, passing off and rendition of accounts amongst other reliefs. The appellant claimed that he is the registered proprietor of the trademarks `1192' and `JAGMAG 1192'. The said trademarks were registered with the Trade Mark Registry under class 34 bearing registration nos. 2317657 and 2317658 dated 19.04.2012. The appellant also claimed that he holds copyright in the label/packaging, original artistic work, getup, layout and pattern, `JAGMAG 1192'. And, the same is registered under the Copyright Act, 1957 bearing registration no. A-111868/2014 dated 23.09.2014.

5. The appellant is a resident of Surajkund, Varanasi, Uttar Pradesh. The respondent is a company incorporated under the Companies Act, 1956 and has its registered office in Kolkata, West Bengal.

6. The appellant alleges that the respondent is clandestinely manufacturing and selling chewing tobacco and other allied products under the label/trademark `SIGNAL 1191', which is deceptively similar to his registered trademarks. The appellant claims that the respondent has dishonestly and with mala fide intention adopted trademarks, which are deceptively similar to his trademarks. He further claims that the respondent has also copied the artwork, colour combination and packaging of its label and the same infringes his copyright, `JAGMAG 1192'.

7. The appellant's label/packaging and the label/packaging allegedly adopted by the respondent are reproduced below:

8. It is trite law that an objection regarding territorial jurisdiction of a court, raised by way of an application under Order VII Rule 10 of the CPC, is to be decided on a demurrer, that is, by accepting all statements made in the plaint to be true. Thus, the examination for the purpose of an application under Order VII Rule 10 of the CPC is limited to the averments made in the plaint and the documents filed by the plaintiff.

9. In D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267, the