Territorial jurisdiction . Designs Act, 2000 . Section 22 . Violation of registered design relation to a `Jug’ .

 

2018  (74) PTC  163 (HIGH COURT OF RAJASTHAN)

Head Note:

 Lack of territorial jurisdiction .

There is no substance in the application filed by the defendant No.1 .

This Court has territorial jurisdiction .

Civil Procedure Code, 1908 Order 7 Rule 11, Section 20 .

Part of cause of action dose arise within the territorial jurisdiction of this Court  Cause of action arose at Jodhpur .

Application for rejection of plaint is dismissed.

Rejection of plaint .

Plaintiff is doing its business in Gujarat and the suit for infringement has been filed at Jodhpur .

Designs Act, 2000 .

Section 22 .

Violation of registered design relation to a `Jug’ .

 

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Other Original Suit No. 1 / 2016

M/s. Manibhadra Plastic Industries

—-Petitioner

Versus

M/s. Pearl Thrmoplast Pvt. Ltd.

—-Respondent

S.B. Civil Stay No. 2236 / 2017

M/s. Manibhadra Plastic Industries

—-Petitioner

Versus

M/s. Pearl Thrmoplast Pvt. Ltd.

—-Respondent

 

For Petitioner(s) : Mr. Ashok Soni.

For Respondent(s) : Mr. Nishant Bora.

HON’BLE MR. JUSTICE ARUN BHANSALI Order 05/03/2018

The matter comes upon on an application filed by the defendant No.1 under Order VII, Rule 11 CPC seeking rejection of plaint on account of lack of territorial jurisdiction.

The present suit for permanent injunction under Section 22 of the Designs Act, 2000 (‘the Act’) was filed by the plaintiff before the District Judge, Jodhpur Metropolitan alleging violation of registered design No.245-249 in relation to a ‘Jug’. It was, inter alia, indicated that the cause of action arose at Jodhpur in July, (2 of 6) 2015 when the plaintiff came to know that the goods in violation of the registered design were being sold at Jodhpur and such goods were purchased on 14.08.2015, which violation was continuing.

In relation to the territorial jurisdiction, it was averred that the defendants were violating the legal rights of the plaintiff within the jurisdiction of Courts at Jodhpur. The petitioner-Firm is situated in Vapi (Gujarat), however, having its business at Jodhpur and even otherwise under Section 22 of the Act and provisions of CPC, the Court has the jurisdiction.

In the written statement, filed by the respondent No.1, when validity of design registration No.245-249 granted to the plaintiff was challenged, the suit was transferred to this Court under Section 22(4) of the Act.

An application under Order VII, Rule 11 CPC has been filed by the defendant No.1 with the averments that the defendant No.1 is a Company incorporated in Mumbai (Maharashtra) and is doing its business there, the plaintiff is doing its business in Gujarat and the suit for infringement has been filed at Jodhpur by impleading defendant No.2, who is a dealer situated at Jodhpur, who has no relation with the defendant No.1 and only with a view to create jurisdiction at Jodhpur, the defendant No.2 has been added as party, whereas the normal business of the plaintiff is at Gujarat, which shows malafide on part of the plaintiff and, therefore, this Court has no jurisdiction to try the matter, as the defendant No.1 does not reside within the jurisdiction of this Court. Several other averments have been made in the application (3 of 6) pertaining to the merit of the dispute and questioning the grant of registration to the plaintiff and a prayer has been made that the application be allowed and the plaint be rejected.

A reply to the application has been filed by the plaintiff. It is, inter alia, claimed that the plaintiff has disclosed activities of infringement of the registered design by the defendant No.1, which activity of selling the goods is being carrying on by defendant No.2 in City of Jodhpur and, therefore, this Court has territorial jurisdiction to deal with the matter. It is denied that on account of the normal place of business of plaintiff and defendant No.1 being at Gujarat and Maharashtra respectively, the territorial jurisdiction of this Court can be taken away and, therefore, the application was liable to be rejected.

Learned counsel for the defendant No.1 reiterated the submissions as raised in the application and noticed hereinbefore. It was submitted that the filing of the present suit at Jodhpur, is malafide and in fact same has been filed only with a view to harass the defendant No.1. It was submitted that merely because the goods in question were allegedly purchased by the plaintiff at Jodhpur, the same cannot confer jurisdiction on this Court to deal with the matter. It was submitted that in terms of provisions of Section 20 CPC, no part of cause of action has arisen at Jodhpur and admittedly, the defendant No.1 does not reside at Jodhpur and, therefore, the plaint was liable to be rejected.

Learned counsel for the plaintiff reiterated the submissions as made in the reply to the application and submitted that part of cause of action does arise at Jodhpur and in terms of Section (4 of 6) 20(c) CPC, this Court has jurisdiction to deal with the matter. Submissions were also made with reference to the provisions of the Act to indicate that the said Act does not specify the jurisdiction of the Court for the purposes of suits under Section 22 of the Act and, therefore, it cannot be said that this Court lacks territorial jurisdiction.

Reliance was placed on judgment of Hon’ble Supreme Court in Mayar (H.K.) Ltd. & Ors.: Owners & Parties M.V. Fortune Express & Ors.: (2006) 3 SCC 100.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

Provisions of Section 22 of the Act deals with piracy of registered design, which reads as under:-

“22. Piracy of registered design.– (1) During the existence of copyright in any design it shall not be lawful for any person–

(a) for the purpose of sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the licence or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or

(b) to import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof; or

(c) knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article.

(2) If any person acts in contravention of this section, he shall be liable for every contravention–

(a) to pay to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt, or (5 of 6)

(b) if the proprietor elects to bring a suit for the recovery of damages for any such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly:

Provided that the total sum recoverable in respect of any one design under clause (a) shall not exceed fifty thousand rupees:

Provided further that no suit or any other proceeding for relief under this sub-section shall be instituted in any court below the court of District Judge. (3) In any suit or any other proceeding for relief under sub-section (2), every ground on which the registration of a design may be cancelled under section 19 shall be available as a ground of defence. (4) Notwithstanding anything contained in the second proviso to sub-section (2), where any ground on which the registration of a design may be cancelled under section 19 has been availed of as a ground of defence and sub-section (3) in any suit or other proceeding for relief under sub-section (2), the suit or such other proceeding shall be transferred by the court, in which the suit or such other proceeding is pending, to the High Court for decision.

(5) When the court makes a decree in a suit under sub-section (2), it shall send a copy of the decree to the Controller, who shall cause an entry thereof to be made in the register of designs.”

The provision, only by way of proviso mandates that no suit for relief under Sub-Section 2 shall be instituted in any Court below, the Court of District Judge. A further feature may be noticed that provision deals with ‘any person’ and entitled the Proprietor to seek injunction against any person, who acts in contravention of the Section.

Section 20 CPC, inter alia, provides that suit can be instituted where a defendant, inter alia, carried on business and the cause of action wholly or in part arises.

A bare look at the allegations made in the plaint reveal that relief and injunction have been sought against both the defendants after allegations have been made regarding contravention of the registered design.

(6 of 6) The provision of the Design Act does not specify the Court, wherein such proceedings can be initiated unlike in case of Trademarks Act, 1988, where the suit could be filed, where the plaintiff’s business is operating and, therefore, the only relevant provision for judging the territorial jurisdiction would be Section 20 CPC. It is well settled that such Court would have jurisdiction, where the cause of action or part of cause of action has arisen, as already noticed hereinbefore, the allegation made pertains to violation of registered design at Jodhpur.

As already noticed hereinbefore, the provisions of Section 22 of the Act envisage that the action for infringement can be initiated against any person whether he is registered Proprietor of the violating design and/or against any such person selling such product, an injunction can be sought and once the averments have been made regarding sale of product by defendant No.2 at Jodhpur manufactured by the defendant No.1, which aspect has not been denied, the part of cause of action in terms of Section 22of the Act dose arise within the territorial jurisdiction of this Court and in absence of any specific provision conferring jurisdiction on any specific Court under the Act, it cannot be said that this Court lacks territorial jurisdiction to deal with the matter.

In view of the above discussion, there is no substance in the application filed by the defendant No.1 under Order VII, Rule 11 CPC, the same is, therefore, dismissed.

(ARUN BHANSALI)J.

PKS

 

 

 

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