2006 (7) TMI 651

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....ppellant, however, filed an application dated 23rd January, 2006, under Order VII Rule 11 of the Code of Civil Procedure, praying inter alia for rejection of the plaint for want of territorial jurisdiction. In support of the aforesaid contention and submission, the appellant heavily relied upon the judgment of the Supreme Court in the case of Dhodha House v. S.K. Maingi reported as 2005 (10) SCALE 267. 4. The learned Single Judge considered the aforesaid plea raised by the appellant in its application and vide order dated 28th April, 2006 rejected the same holding that a part of the cause of action having arisen within the territorial jurisdiction of this Court, the suit filed by the respondent cannot be dismissed for want of territorial jurisdiction. The aforesaid findings and the conclusions arrived at by the learned Single Judge are under challenge in this appeal. 5. Mr. Bishwajit Bhattacharya, learned Counsel appearing for the appellant vehemently submitted before us that while enacting the Trade Marks Act, 1999, a specific Section, namely, Section 134 has been enacted, which provides that a suit for infringement of a registered trade mark or for passing off cannot not be....

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....sdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceedings, the person instituting the suit or proceedings, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. 7. Referring to the aforesaid two provisions, counsel for the appellant submitted before us that Section 20 of the Code of Civil Procedure is a general provision contained in the Code of Civil Procedure, which gives a guideline of the courts which would have the territorial jurisdiction to try and entertain a suit. It specifically provides that every suit will be instituted in a court within the local limits of whose jurisdiction the defendant resides, carries on business or personally works for gain or where the cause of action has arisen, either wholly or in part. There is also an explanation provided to Section 20 CPC, which lays down that a corporation shall be deemed to carry on business at its sole or pr....

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....visions of Section 20 of the Code of Civil Procedure. As per the aforesaid submission made in the plaint and the submissions made by the learned Counsel for the respondent, the provisions of Section 134 of the Trade Marks Act, 1999 have no application at all to the facts and circumstances of the present case. 10. When an effort is being made to derive support from the provisions of Section 20 CPC for claiming right and entitlement to institute a case in this Court, we have to examine as to whether or not the provisions of Section 20 CPC are applicable to the facts of the present case. There are several decisions rendered by this Court, dealing with the issue of territorial jurisdiction in such matters which are relevant in the context of whether or not the provisions of Section 20 CPC are at all applicable to the facts of this case or whether the said provision stood impliedly repealed by the provisions of Section 134 of the Trade Marks Act. Such decisions were rendered not only in the context of the Trade Marks Act, of 1958 but also in the context of Copyright Act, which contains a specific provision with regard to territorial jurisdiction, namely, Section 62 of the Copyright A....

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....ain a suit. The ratio of the decision of the Supreme Court in the case of Harshad Chiman Lal Modi (supra) is an authority in this regard and there can be no dispute with regard to the said proposition of law as laid down and settled by the Supreme Court. 12. Now, coming to Section 20 of the Code of Civil Procedure, a perusal of the same make it manifest that it is possible to invoke the jurisdiction of a particular court if the defendants or any of the defendants resides or carries on business or personally works for gain within the jurisdiction of the said court. When the Trade Marks Act was enacted, the Legislature was fully conscious of the fact that Section 20 of the Code of Civil Procedure provides for a forum and the place in which a suit is required to be instituted. Despite the said fact, Section 134 of the Trade Marks Act, 1999 was enacted and while enacting the said provision, which was in addition to the provisions of the Code of Civil Procedure, the Legislature specifically included the non obstante clause, which states "notwithstanding anything contained in the Code of Civil Procedure". 13. Therefore, in our opinion, in view of the inclusion of the aforesaid expr....

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....ision, is found to be devoid of merit and is rejected. We hold that the provisions of Section 134 of the Trade Marks Act, 1999 do not whittle down the provisions of Section 20 of the CPC but only provide an additional forum and place for filing a suit in the case of any trade mark violation. 16. In any event, in the present case, it is not the intention of the respondent/plaintiff to invoke the provisions of Section 134 of the Trade Marks Act. It is categorically submitted before us by the learned Counsel for the respondent for the purpose of proving and establishing that this Court has territorial jurisdiction that what is sought to be invoked, is only the provisions of Section 20 of the Code of Civil Procedure and not the provisions of Section 134 of Trade Marks Act. Therefore, we are required to scrutinize the plaint filed by the respondent/plaintiff and come to a definite conclusion as to whether or not this Court will have the territorial jurisdiction, in terms of the provisions of Section 20 CPC. 17. When the aforesaid provision is examined in the light of the facts of the present case, it is crystal clear that in fact, the provisions of Section 20(a) and 20(b) will not....