TaxTMI 
TaxTMI 
2008 (2) TMI 857
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....o not obtained. Being aggrieved, the appellants preferred these appeals which fell for consideration before us. 3. C.S. No.874 of 2007 is filed by the plaintiffs for a permanent injunction restraining the defendants from infringing their registered trade mark "Chandrika" and from manufacturing, selling, advertising and offering for sale, soaps or toilet preparation with prefix or suffix with the expression "Chandrika". In C.S. No.996 of 2007, the plaintiffs seek a permanent injunction restraining the defendants from infringing their copyright "Chandrika" and the colour scheme and get-up and restraining them from reproducing by selling, advertising or offering for sale, soaps by using the impugned copyright "Chandrika". 4. The first plaintiff Wipro is a Fast Moving Consumer Goods (FMCG) Company and is said to be carrying on business for nearly sixty years. The second plaintiff Wipro Chandrika Limited is a subsidiary of the first plaintiff by virtue of the first plaintiff having 90% shareholding. The case of the plaintiffs is that in the year 2004, the second plaintiff acquired the trade mark "Chandrika" along with its goodwill, rights, interest and property under separate assi....
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....l earned by the plaintiffs in respect of its product "Chandrika" brand. 6. On the interlocutory applications filed by the plaintiffs, an ex parte order of injunction came to be passed in favour of the plaintiffs on 4.1.2007. Alleging that this Court has no jurisdiction to try the suits, the defendants filed Application No.7356 of 2007 to reject the plaint filed in C.S. No.874 of 2007, Application No.7534 of 2007 in C.S. No.874 of 2007 to vacate the order of interim injunction and Application No.7535 of 2007 in C.S. No.874 of 2007 to suspend the order of interim injunction. On the same ground, the defendants filed Application No.7854 of 2007 to reject the plaint in C.S.No.996 of 2007. In their application to reject the plaint, the defendants inter alia contended that the plaintiffs are carrying on business at Bangalore and all the defendants are in Kerala and without any part of the cause of action having arisen in Chennai, the Court cannot entertain the suits. It was contended that as per Section 62 of the Copyright Act and Section 134 of the Trade Mark Act, the expression 'actually and voluntarily resides or carries on business" has to be meaningfully interpreted and would ....
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.... but would also include the branch or the branches where the party is said to have carried on business. According to the learned senior counsel the place of business of the first plaintiff has been clearly set out as Thiru.Vi.Ka. Industrial Estate, Guindy, Chennai, and if the plaint averments are to be taken as they stand, this Court has the jurisdiction to try the suits. Learned senior counsel submitted that Section 62 of the Copyright Act as well as Section 134 of the Trade Marks Act contain a non-obstante clause, by virtue of which the Letters Patent is superseded by the legislation and hence, the leave to sue under Clause 12 of the Letters Patent need not be obtained. 9. On the other hand, Mr. Madan Babu, learned counsel appearing for the defendants submitted that the second plaintiff, who is the registered proprietor of the trade mark in question, is based at Bangalore and also the first plaintiff has its Corporate Office at Bangalore, which is outside the jurisdiction of this Court. According to him, the fact that the first plaintiff has got its branch office at Chennai is of no consequence and in any event, the first plaintiff is not carrying on any business in Chennai so....
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....sub-section (1), a "district Court having jurisdiction" 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 proceeding, the person instituting the suit or other proceeding 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." Section 134 of the Trade Marks Act, 1999 reads as hereunder : "134 . Suit for infringement, etc., to be instituted before District Court: - (1) No suit (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered, shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit. (2) For the purpose of clauses (a) and (b) of sub-section (1), a Distric....
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....amely, "actually and voluntarily resides" and "carries on business" is correctly perceived, it would reveal that while there is limitation, regarding residence, there is no such restriction with reference to "carrying on business". This is a clear indication that the term "carries on business" is not confined to only principal place of business. If the Legislature intended to mean the principal place only, it would have suitably qualified the expression "carries on business". The plain meaning of the above expression will only convey that wherever there is a business activity be it the principal place or branch or branches the party is said to carry on business in all such places. 12. The provisions of Section 62 of the Copyright Act fell for consideration of the Supreme Court in Exphar SA vs. Eupharma Laboratories Ltd. [A.I.R. 2004 S.C. 1682]. Justice Ruma Pal, speaking for the Bench, observed as follows : "We would like to emphasise the word include . This shows that the jurisdiction for the purposes of Section 62 is wider than that of the court as prescribed under the Code of Civil Procedure, 1908. The relevant extract of the report of the Joi....
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.... In other words, a special right is conferred on the proprietor of the registered trade mark to institute a suit for infringement of any trade mark or copyright in the district within whose jurisdiction he resides or carries on business. The provision contained in non-obstante clause by using the phrase "notwithstanding anything contained in the C.P.C, 1908 (5 of 1908) or any other law for the time being in force" is made with a view to give a overriding effect to the said provision. It is equivalent to saying that the provision would hold the field notwithstanding anything contained in the C.P.C or any other law for the time being force. Moreover, by virtue of Section 120 of the C.P.C, the provisions of Section 20 are not applicable as far as High Court is concerned. Therefore, the scope of this section cannot be curtailed by reference to Section 20 of the C.P.C or Clause-12 of the Letters Patent. Therefore, in a case of infringement of trade mark or copyright covered by Section 134(2) of the Trade Marks Act or Section 62(2) of the Copyright Act, the question of plaintiff taking prior leave under Clause 12 of the Letters Patent does not arise and the plaintiff need not take leave ....
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....(a) suit for infringement of a registered trade mark (b) suit relating to any right in a registered trade mark and (c) suit for passing off. In view of sub-section (1) of Section 134, all the above three types of suits are to be instituted only in a Court not inferior to a District Court having jurisdiction to try the suit. Sub-section (2) of Section 134, defines the expression 'District Court having jurisdiction' found in sub-section (1), to include a District Court within whose jurisdiction the plaintiff resides or carries on business at the time of institution of the suit, if the suit is in respect of a registered trade mark. Therefore, a special privilege is conferred upon the Proprietor of a registered trade mark to institute a suit for infringement or a suit relating to any right in a registered trade mark, in the District Court within whose jurisdiction, he resides or carries on business. This privilege is conferred by Section 134(2), with a non abstante Clause, by using the phrase 'notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force'. Since Section 134(2) declares that it would hold....
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....n of this Court. Therefore, the contention that the plaintiff ought to have obtained leave under Clause 12 goes against the very tenor of Clause 12. This is not a case covered by Clause 12 of the Letters Patent, but a case covered by Section 134(2) of the Trade Marks Act, 1999 and hence, I hold that the suit is maintainable on the file of this Court. Therefore, the application under Order VII Rule 11 CPC, A.No.3704 of 2006 is dismissed." 17. In the present case, when an objection to jurisdiction was raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the Court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the learned single Judge ought to have taken allegations contained in the plaint to be correct. However, the learned single Judge examined the counter affidavit filed by the defendants in which it was claimed that the first plaintiff did not carry on business within the jurisdiction of the Madras High Court. Having considered the factual sta....