TaxTMI 
TaxTMI 
1987 (4) TMI 498
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....place and papers of this suit before the learned Chief Justice for appropriate orders under Rule 28 of the High Court Original Side Rules (hereinafter referred to as "the Rules"). The question that has been formulated and referred to the larger Bench by the learned single Judge is as follows: "Whether a suit of the nature referred to in Section 105 of the Trade and Merchandise Marks Act, 1958, the valuation of the suit being ₹ 50, 000/- or less, is triable by the High Court or City Civil Court, having regard to the definition of District Court in Section 2(4) of the Code of Civil Procedure This is how we are required to consider and record a finding on the question referred to the larger Bench. 2. The appellant in this appeal is the original plaintiff, hereinafter referred to as "the plaintiff. The plaintiff Mohan Meakin Limited is a public Limited company which was formerly known as Mohan Meakin Breweries Limited and it is incorporated and registered under the Indian Companies Act, VII of 1913, having its registered office at Solan Brewery, P. O. 173214, Simla Hills, Himachal Pradesh and having a Branch office and depot at Arthur Bunder Road, Colaba,....
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.... the defendant's trade mark also consisting of the device of Knight riding a horse and words 'Royal Knight' and the use of the impugned trade mark 'Royal Knight' by the defendant is an infringement of the rights of the plaintiff. The use of the impugned trade mark "Royal Knight" in respect of whisky of the defendant is substantially and/or deceptively similar to the plaintiff's Black Knight trade marks and it so nearly resembles and is likely to cause confusion in the course of trade and the use thereof in relation to whisky is enabling the defendant to pass off whisky of its manufacture as and for the whisky of the plaintiff. The plaintiff therefore averred in the plaint that in the circumstances aforesaid the defendant by adopting and using the impugned trade mark Royal Knight as mentioned above has committed infringement of the common law and statutory rights of the plaintiff in respect of its Black Knight trade marks. The plaintiff therefore prayed:- "(A) That the defendant by itself, its servants, officers, agents, dealers, stockiest and all other persons in its behalf be restrained by a perpetual order and injunction from in any manner....
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....ky bearing the impugned Trade Marks 'Royal Knight' is being commercially sold and offered for sale in Bombay and as such the defendant is committing the acts of infringement and passing off in Bombay. The defendant is a Co-operative Society having its registered office at Pravaranagar, Taluka Shrirampur, District Ahmednagar outside Bombay. The material part of the cause of action has arisen in Bombay. This Hon'ble Court has therefore exclusive jurisdiction to entertain and try the suit under the Trade and Merchandise Marks Act, 1958. This Hon'ble Court has, therefore, jurisdiction to entertain and try this suit." Then in paragraph 39 of the plaint, the plaintiff has stated as follows : "39. For the purpose of Court fees and Jurisdiction, Prayers (A), (B) and (C) are incapable of monetary valuation and, therefore, a Court fee of ₹ 30/- is paid in respect of each of them. Prayer (D) is valued at ₹ 5, 000/- and prayer (E) is valued at ₹ 300/-. The plaintiff undertakes to pay the additional Court fees as and when required in respect of prayer (D) upon the actual amount being ascertained on the accounts being taken." 7. In reply to th....
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....the suit as alleged in paragraph 2 of the written statement ?" 9. The learned Single Judge on the first two preliminary issues recorded his findings in the affirmative and held that since the plaintiff has failed to give the statutory notice under Section 164 of the Co-operative Societies Act, the suit is liable to be dismissed. In regard to the third issue the learned Single Judge recorded his finding in the negative holding that this court has jurisdiction to entertain the suit. As stated earlier so far as this finding is concerned the learned Single Judge opined that the same would be in conflict with the decision in Pravin R. Gaglani (supra). He therefore, referred the said issue to a larger Bench for consideration and decision. 10. We may first deal with the various challenges of the appellant to the findings on the first two issues. It may be stated that the plaintiff's alone have filed this Letters Patent Appeal challenging the legality and correctness of the findings recorded by the trial Judge on first two issues. Mr. Mehta, learned counsel appearing for the plaintiffs urged that the learned trial Judge as failed to appreciate that the subject-matter of the sui....
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....against a society, or any of its officers, in respect of any Act touching the business of the society, until the expiration of two month next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left." 11. On a plain reading of this section it is quite clear that no suit shall be instituted against the society or any of its officers in respect of any act touching the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office. It is common ground before us that this statutory requirement has not been complied with on the date when the present suit was instituted on August 7, 1980. But, however, according to Mr. Mehta Section 164 of the Co-operative Societies Act has no application because it is not the pleading of the defendant that one of the objects of the defendant is to carry on the business of manufacture and/or of sale of alcoholic products viz. whisky a....
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....hat be so, an act of infringement and passing off the trade mark cannot be construed as an Act touching the business of the society. This submission has to be tested with reference to the bye-laws of the defendant of which the official translation has been supplied to us. These bye-laws are called, "Pravara Sahakari Sakhar Karkhana Ltd., Pravaranagar, " Bye-law 2(g) deals with Aims and Objects to the society. Bye-law 2(g) reads as under: "To grow sugarcane and other crops, to construct buildings, to erect workshops for manufacturing sugar and other complementary products and to run them for that purpose - (1) xx (2) xx (3) To purchase sugarcane and jaggery and other products according to necessity, and to purchase necessary articles from members and non-members and to cultivate sugarcane and other crops for manufacturing other complementary products and to take action for complying with the items necessary for the same. 2(chha) To install necessary machinery for doing process on the complementary products such as stalk of squeezed sugarcane, sugar skimmings, press mud (?) etc. and agricultural produce to purchase raw materials for the same and to sell the f....
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....laws. A restricted meaning will have to be given to the word 'business' used in Section 164 and in this context if clause 2 and in particular sub-clause (chha) of the said bye-laws are read, it cannot be said that manufacturing of alcoholic products is the business of the society. If that be so, counsel urged the provisions of Section 164 will have no application. In support of this submission Mr. Mehta heavily relied upon the judgement of the Supreme Court in Deccan Merchants Co-operative Bank Ltd. v. M/s. Dalichand Judraj Jain and Ors. [1969]1SCR887 . In this reported judgment of the Supreme Court, the word 'business' used in sub-Section (1) of Section 91 of the Co-operative Societies Act fell for consideration and while construing the ambit of the said word 'business' the Supreme Court in paragraphs 16 and 17 has held as follows : 16. "The principal questions which arise on the interpretation of Section 91 are two : (1) What is the meaning of the expression "touching the business of the society" ? and (2) what is the meaning of the expression "a person claiming through a member" which occurs in Section 91(1)(b) ?" We ar....
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....dgment it appears that the appellant Deccan Merchants Co-operative Bank Ltd. was doing the business of banking. The original owner executed an agreement by which he leased out the entire ground-floor of building to the writ petitioners on a monthly rent of ₹ 250/-. This building was mortgaged with the bank by way of security. In arbitration proceeding bank obtained a consent award against the owner under which repayment of debt by installment was provided. It also provided a default clause. Owner/debtor committed a default. The building however could not be sold for want of buyers. Collector issued certificate of transfer of right, title and interest in the building under Section 100 of the Maharashtra Co-operative Societies Act in favour of Bank. Since vacant possession could not be obtained as the tenants/occupants resisted, the bank applied to the Deputy Registrar, Co-operative Societies under Section 91-96 of the Co-operative Societies Act. The dispute was referred to Registrar's nominee under Section 93 of the Co-operative Societies Act. Petitioners/tenants challenged the jurisdiction of the Registrar's nominee to certain such dispute by filing petition under Art....
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....on a contractual liability may require a notice under Section 164 of the Co-operative Societies Act but so far as the tortuous liability is concerned which is the foundation of the present suit against the defendant, the provisions of the Act and in particular Section 164 will have no application. We are unable to agree with this submission. In our opinion Section 164 of the Co-operative Societies Act must apply to every suit in respect of any Act touching the business of the society whether founded on contractual liability or in torts. This contention urged on behalf of the plaintiff has therefore no substance and must be rejected. 19. In view of our forgoing conclusions in connection with the interpretation of Section 164 of the Act and the bye-laws of the society we are of the opinion that the learned trial Judge was right in answering issues Nos. 1 and 2 in the affirmative and consequently taking a view that the plaintiff's suit is liable to be dismissed. 20. We may now turn to the issue referred by the learned Single Judge to a larger Bench. The issue reads as under : "Whether a suit of the nature referred to in Section 105 of the Trade and Merchandise Marks Act, ....
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....y 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." Having regard to the frame of the present suit it cannot be disputed that the present suit falls within the category mentioned in Section 105 of the Act. Such a suit has to be filed in a Court which shall not be inferior to District Court having the jurisdiction to try the suit. The principal question is what is the meaning of word, "District Court" having jurisdiction to try the suit. The word, "District Court" has not been defined under the Act. Clause (c) of sub-Section (1) of Section 2 of the Act defines the word "District Court" as : "District Court" has the meaning assigned to it in the Code of Civil Procedure, 1908. We have therefore to turn to the provisions contained in the Code of Civil Procedure which defines the District Court. Civil Procedure Code in terms does not define the District Court, but sub-Section (4) of Section 2, defines the word 'district' which reads a....
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....quot;Clause 11 : And we do hereby ordain that the said High Court of Judicature at (Madras) (Bombay) Fort William in Bengal shall have and exercise ordinary original civil jurisdiction within such local limits as may from time to time be declared and prescribed by any law made by competent legislative authority for India and until some local limits shall be so declared and prescribed within the limits declared and prescribed by the proclamation fixing the limits of Calcutta issued by the Governor-General in Council on the 10th day of September, in the year of our Lord. One thousand seven hundred and ninety-four and the ordinary original civil jurisdiction of the said High Court shall not extend beyond the limits for the time being declared and prescribed as the local limits of such jurisdiction." "Clause 12: And we do further ordain that the said High Court of Judicature at Fort William in Bengal (Madras) (Bombay) in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated or in all other case....
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....orated in Section 3 of the Bombay City Civil Court Act which takes away the jurisdiction of the said Court in certain class of suits as provided under Clauses (a) to (d.) of Section 2. It is not and cannot be disputed that the present suit is filed by the plaintiff under the Trade and Merchandise Marks Act, 1958 and, therefore, it is a suit which is filed under the special law. If this be so, under Clause (c) of Section 3 of the Act the jurisdiction of the Bombay City Civil Court to receive, try and dispose of the present suit is excluded. But, however, the controversy which survive, for consideration is what is the meaning that has to be assigned to the word "district" occurring in Section 105 of the Act ? Section 105 of the Act, provides that no suits shall be instituted in any court inferior to District Court having jurisdiction to try the suit. As stated earlier the Act does not define the District Court. The Code of Civil Procedure also does not define "District Court" but it defines only "district" and it means local limits of the jurisdiction of the principal Civil Court of Original Jurisdiction hereinafter called the District Court and includes....
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....urt being the principal Civil Court of original civil jurisdiction will be the District Court for the purpose of Section 105 of the Trade and Merchandise Marks Act, 1958 and as such suits of the nature mentioned in the said Section must be filed in the High Court irrespective of the pecuniary valuation of the suit. 26. Mr. Tulzapurkar, learned counsel appearing for the defendant urged that having regard to the pecuniary valuation of the present suit such a suit ought to have been filed in a principal Civil Court of original civil jurisdiction viz. the Bombay City Civil Court and the High Court has no jurisdiction. We are unable to subscribe to this contention for the reason indicated above. In our opinion, on correct interpretation of Section 2(4) of the Civil Procedure Code, the governing factor is local limits or territorial jurisdiction and pecuniary jurisdiction is not relevant inasmuch as the present suit having been filed under Section 105 of the Act and in particular having regard to the provisions contained in Section 3(c) of the Bombay City Civil Court Act, 1948 which has been referred to hereinabove the jurisdiction of the Bombay City Civil Court is excluded. 27. Mr. Tu....
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.... nature. It is well recognised that copyright is property, and, therefore, a suit seeking reliefs for infringement of copyright is a suit of a civil nature. If such infringement occurs, and the cause of action for a suit based on the infringement arises within the area of the ordinary original civil jurisdiction of the High Court that Court can be deemed to be a District Court as per definition in Section 2(4) of the Civil Procedure Code and will have power to try the sent. Our attention was drawn to a case of the Calcutta High Court Kedarnath Mondal v. Ganesh Chandra Adak (1908) 12 Cal. W. N. 140 which arose under the Inventions and Designs Act, 1888. That Act contained a specific clause that a District Court had the meaning assigned to that expression by the Code of Civil Procedure. After construing Clause 2(4) of the Civil Procedure Code, Fletcher J., came to the conclusion that when a High Court exercises its ordinary civil jurisdiction it comes within the definition of District Court as contained in the Civil Procedure Code". We are in complete agreement with the principles laid down by the Division Bench of the Madras High Court. 29. We may also usefully refer to an un....
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....ven under the Civil Procedure Code is made applicable in that behalf. The same analogy would equally apply to the present case also. 31. Apart from the above discussion we are of the opinion that if the scheme of the Act is taken into account it would be more consistent to hold that a suit under Section 105 of the Act must be filed on the original side of the High Court. In this behalf we may make a reference in particular to appeal provision contained in Section 109 of the Act. Under sub-section (2) of Section 109, an appeal shall lie to the High Court against the decision or order made under the Act by the Central Government or the Registrar. The provisions contained in Sections 105 and 109 of the Act read with Section 2(4) of the Civil Procedure Code and Section 3 of the Bombay City Civil Court Act will have to be harmoniously construed. Upon reading all these relevant provisions we are of the opinion that the jurisdiction of the Bombay City Civil Court so far as the suits falling under Section 105 of the Act are concerned irrespective of the pecuniary valuation is totally excluded and such a suit must be filed on the Original Side of the High Court. If such harmonious construc....