Apex Court in case of Indian Performing Rights Society Ltd. had observed that, accrual of cause of action was a sine qua non for suit to be filed and cause of action was a bundle of facts which required to be proved to enable Court to grant relief to Plaintiff. Cause of action, not only referred to infringement but also material facts on which rights were founded. It was requirement of law that, it had to be independently decided in each case by concerned Court as to whether cause of action arose wholly or in part thereby conferring jurisdiction of Court. if cause of action arose wholly or in part in a place where Plaintiff was residing or having its principal office/carried on business or personally worked for gain, suit could be filed at such a place. That Plaintiff could also institute suit at a place where he was residing, carrying on business or personally worked for gain de hors

MIPR 2018 (2) 0409=   MAXU/KA/1878/2018

 

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Manipal University, Bangalore

vs

Manipal Holdings Private Limited, Udupi

and

Manipal Holdings Pvt. Ltd., Bangalore

vs

Manipal University, Bangalore

MFA NO. 916/2017 (IPR) C/W MFA NO. 2271/2017 (IPR) DECIDED ON: 28.05.2018

Judge

Narendra, J.

Counsel

For Appellant/Petitioner/Plaintiff: Sajan Poovayya, Sr. Counsel, Manu Kulkarni,

Sushal Thvari, Advs. for Sanjanthi Krishnappa, Adv. in MFA No. 916/2017 (IPR)

and Sahana B.V., Adv. in MFA No. 2271/2017 (IPR) For Respondents/Defendant: Ashok G.V., Adv. in MFA No. 916/2017 (IPR), Sajan

Poovayya, Sr. Counsel, Manu Kulkarni and Sushal Tiwari, Advs. in MFA No.

2271-‘2017 (IPR)

Cases referred

Indian Performing Rights Society Ltd. v. Scmjay Dalia and Am. MANU/SC/0716/2015: (2015! 1C SCC 161: 2015 VIII AD (S.C.) 337: AIR 2015 SC 3479: 2015 (6) ALD 65: 2015 (4) AWC 4035 (SC): 2015 (5) BomCR 18: 2015 (3) CDR 737 (SC): (2016) 130 CLA12 (SC): 2016-1-LW 1: MIPR 2015 (2) 199: (2015) 5 MLJ 446 (SC): 2015 (II) OLR (SC) 720: 2015 (63) PTC 1 (SC): 2016 (2) RCR (Criminal) 213: 2015 (4) RLW 2789 (SC): 2015 (7) SCALE 574: 2015 (6) SCJ 455: (2016) 3 WBLR (SC) 300 (

 

Manngraph India Limited, Mumbai v. Simarcj Technologies Pvt. Limited, Kolhapur and
Ors. MAXU/MH/1095/2016: AIR 2016 Bom 217: 2016 (4) ABR 712: 2016 (67)
PTC 254 (Bom)

Rajasthan High Court Advocates Association v. Union of India (

Acts/Rules/Regulations Code of Civil Procedure, 1908

Section 20

Section 20(a)

Section 20(b)

Section 20(c) Code of Civil Procedure, 1908

Order 7 Rule 10

Order 7 Rule 10A

Order 7 Rule 10A(2) Copyright Act, 1957

Section 62

Section 62(2) Trade Marks Act, 1999

Section 134

Section 134(l)(a)

Section 134(l)(b)

Section 134(2) University Grants Commission Act, 1956

Section 3

 

Trade mark – Infringement -Jurisdiction

Held, Apex Court in case of Indian Performing Rights Society Ltd. had observed that, accrual of cause of action was a sine qua non for suit to be filed and cause of action was a bundle of facts which required to be proved to enable Court to grant relief to Plaintiff. Cause of action, not only referred to infringement but also material facts on which rights were founded. It was requirement of law that, it had to be independently decided in each case by concerned Court as to whether cause of action arose wholly or in part thereby conferring jurisdiction of Court. In present case, Trial Court had not even considered issue as to whether cause of action arose within its jurisdiction and even without rendering a finding on same had proceeded to hold that jurisdiction was conferred only on Court within whose jurisdiction Plaintiff had its principal office and carried on business. Trial Court placed reliance on ruling of Apex Court in case of Indian Performing Rights Society Ltd. and proceeded to hold that Plaintiff had to bring action against Defendant only at place of its principal office and not at place where its branch was situated. Said finding was wholly contrary to law laid down by Apex Court and provisions of Section 134 of Act, which clearly conferred an additional forum or place of suing, in addition to forums as envisaged under Section 20 of CPC. In case of Indian Performing Rights Society Ltd., Apex Court had held that, if cause of action arose wholly or in part in a place where Plaintiff was residing or having its principal office/carried on business or personally worked for gain, suit could be filed at such a place. That Plaintiff could also institute suit at a place where he was residing, carrying on business or personally worked for gain de hors, fact that cause of action had not arose at a place where he or they were residing or any one of them was residing, carried on business. But this right to institute suit at such a place had to be read subject to certain restrictions, such as, in case, Plaintiff was residing or carrying on business at a particular place and having its head office and at such place where cause of action had also arisen wholly or in part, then Plaintiff could not ignore such a place under guise that he also had a subordinate office at other place. That rule of convenience had to be given an interpretation which would prevent such a mischief and avert any attempt of Plaintiff to try and harass Defendant by attempting to institute cases in far-flung places where Plaintiff had a branch or subordinate office.

JUDGMENT

Heard Sri.Sajan Poovayya, learned Senior counsel for the appellant-plaintiff in MFA No.916/2017 and respondent- plaintiff in MFA No.2271/2017 and learned counsel for the respondent-defendant in MFA No.916/2017 and the appellant-defendant in MFA 2271/2017.

  1. As both the appeals are arising out of the same order and involve common facts, these appeals are taken up for final disposal by this common judgment
  2. Both the appeals are directed against the order passed by the Court below on I.A.No.8 preferred by the plaintiff under the provisions of Order 7 Rule 10 of CPC praying to return the plaint in O.S.No.8203/2014. The said application is purportedly preferred in view of the law laid down by the Hon’ble Apex Court in the case of Indian Performing Rights Society Ltd. vs. Sanjay Dalia and anotherreported in (2015) 10 SCC 161.
  3. These appeals by the plaintiff are preferred being partially aggrieved by the order passed by the trial Court whereby it has been pleased to direct for return of the plaint for its proper presentation before the District Court within whose jurisdiction its principal office is situated. The plaintiff has not called in question the correctness of the entire order itself allowing the Interlocutory Application. The grievance of the plaintiff is limited to the extent that the trial Court has named the Court before which the plaint has to be presented.
  4. It is contended that the Court below is devoid of the authority to name the Court in which the plaint is to be presented and that in the light of the law laid down in the ruling of Indian Performing Rights Society Ltd. stated supra, the Hon’ble Apex Court interpreting the provisions of Section 134of the Trade Marks Act, 1999 held that, the forum of convenience is left to the choice of the plaintiff.
  5. It is the contention of the defendant that the trial Court itself is the proper Court in the light of the law laid down by the Hon’ble Apex Court in the case of Indian Performing Rights Society Ltd. stated supra.
  6. It is contended that as per the plaint averments, cause of action arose within the jurisdiction of the trial Court as the plaintiff is admittedly having an administrative office and thereby carrying on business and the defendant is also using the Trade Mark in Bengaluru within the jurisdiction of the Trial Court. Hence, in the light of the law laid down by the Hon’ble Apex Court, the suit is maintainable only before the Court at Bengaluru as the plaintiff admittedly has a subordinate office in the Bengaluru and the alleged breach of the registered Trade Mark has been committed in Bengaluru. Thus, the cause of action for the above suit arose in Bengaluru.
  7. It is contended by the learned Senior counsel for the plaintiff that the plaintiff’s academy was established in the year 1942 with a vision for imparting education to the Society at large and with passage of time has acquired great reputation and standing. The plaintiff started the first private medical college in the Country and thereafter, ventured further in the fields of Engineering and Law. That the plaintiff has also commenced a School of Music and Fine Arts and has also diversified in the other branch of academics and education and presently it has its footprints in India and also in foreign shores. That the University is recognized as a deemed University under Section 3of the University Grants Commission Act 1956. That the status of deemed University came to be accorded to it under Government Order dated 01.06.1993. That the plaintiff-University is recognized as a pioneer and has earned repute and standing, internationally. That it is recognized as one of the top hundred Institutions and has contributed luminaries in the field of academics and Corporate world. That the word ‘Manipal’ the Trade Mark of the plaintiff has become synonymous with the field of education and despite the trading name ‘Manipal’ being a geographical name on account of long and continuous user in respect of large number of institutions, the same has acquired a distinctive identity and has come to be associated with the plaintiff. That on account of the long and continuous user of their trade name ‘Manipal’, the plaintiff has acquired exclusive rights.
  8. It is further contended by the learned Senior counsel that adoption and use of a similar trade name without leave of the plaintiff amounts to an infringement of the Trade Mark and that the act of the defendant in carrying on business by adopting a trade name ‘Manipal Career Academy’ amounts to an infringement and is purportedly done with an intention of cashing in on the goodwill and reputation earned by the plaintiff and by misleading gullible citizen into believing that the defendant’s institution, is part and parcel of the plaintiff’s group of institution.
  9. That the defendant is known in two fields namely ‘Kurlon’ and ‘Manipal Advertising Agency’ and the defendant was never associated with the trade name ‘Manipal’. That a Company called ‘Manipal Motors’ was started by the defendant and later on account of defaults etc., is currently facing liquidation proceedings before this Court and hence, the same is sullying the fair name and reputation of the plaintiff. The loss of goodwill, name and reputation cannot be compensated in terms of money.
  10. It is contended that the trial Court has incorrectly analyzed the judgment of the Hon’ble Apex Court rendered in the case of Indian Performing Rights Society Ltd. stated supra. That it has not been held by the Apex Court, that the plaintiff is required to institute the suit only where its principal office situated. Hence, the direction to present the plaint before the District Court within whose jurisdiction the principal office is situated, is erroneous. That the order under appeal is on account of placing reliance on Section 20 of the CPC, 1908 and is contrary to the purposive construction placed by the Apex Court on Section.134 of Trade Marks Act.
  11. On a conjoint reading of Section 20 of the CPC and Section 134of the Trade Marks Act, Section 134of Trade Marks Act does not restrict the right of the plaintiff to initiate proceedings in the place of its choice. That the provisions of Section 134 of the Trade Marks Act provides an additional forum to the plaintiff and that restricting the plaintiff’s choice of forum only to the Court within whose jurisdiction the plaintiff resides does not arise. That the plaintiff being a dominus litis is entitled to choose the Court as provided under Section 134 of the Trade Marks Act, 1999 and as interpreted by the Hon’ble Apex Court, the trial Court erred in preempting the plaintiff’s right to approach the forum of its choice.
  12. That the trial Court ought to have provided an opportunity to the plaintiff as provided under the provisions of Order 7 Rule 10A of CPC. The provisions of Order 7 Rule 10A of CPC mandates that once the trial Court concludes that the instant Court is of the opinion that the plaint should be returned, it must give intimation to the plaintiff and sub-Rule (2) of Rule 10A of Order 7 of CPC permits the plaintiff to make an application specifying the Court in which the plaintiff propose to present the plaint after its return and pray the Court to fix a date for appearance of the parties and further that notice of the date of hearing be given to the plaintiff and the defendant. That the trial Court having formed an opinion that it has no jurisdiction to try the suit has failed to intimate its opinion or provide the opportunity to make an application as required under sub-Rule 2 of Rule 10A of Order 7 of CPC and that in the light of the provisions of sub-Rule 2 of Rule 10A of Order 7 of CPC, no authority is vested with the trial Court to direct the plaintiff to present the plaint in a particular Court. That the order directing the presentation of the plaint before a particular Court is contrary to the scheme of the provisions of Order 7 Rule 10A of CPC. Hence, he would pray that the appeal be allowed.
  13. Learned Senior counsel would invite the attention of the Court to paragraph Nos.17 and 18 of the Indian Performing Rights Society Ltd. case stated supra and contend that accrual of cause of action is a sine qua non for a suit to be filed. That the trial Court having formed an opinion that cause of action does not arise within its jurisdiction, it ought not to have issued a direction. He would further draw the attention of this Court to paragraph No.18 to contend that the rule of convenience of the parties is a statutory expression under Section 20 of CPC. He would also draw the attention of this Court to paragraph Nos.14, 17 and 18 of the Indian Performing Rights Society Ltd. case stated supra and the same are extracted for the sake of convenience:

“14. Considering the very language of section 62 of the Copyright Act and section 134 of the Trade Marks Act, an additional forum has been provided by including a District Court within whose limits the plaintiff actually and voluntarily resides or carries on business or personally works for gain. The object of the provisions was to enable the plaintiff to institute a suit at a place where he or they resided or carried on business, not to enable them to drag the defendant further away from such a place also as is being done in the instant cases.

In our opinion, the expression “notwithstanding anything contained in the Code of Civil Procedure” does not oust the applicability of the provisions of section 20 of the Code of Civil Procedure and it is clear that additional remedy has been provided to the plaintiff so as to file a suit where he is residing or carrying on business etc., as the case may be. Section 20 of the Code of Civil Procedure enables a plaintiff to file a suit where the defendant resides or where cause of action arose. Section 20(a) and section 20(b) usually provides the venue where the defendant or any of them resides, carries on business or personally works for gain. Section 20(c) of the Code of Civil Procedure enables a plaintiff to institute a suit where the cause of action wholly or in part, arises. The Explanation to Section 20 C.P.C. has been added to the effect that Corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has subordinate office at such place. Thus, ‘corporation’ can be sued at a place having its sole or principal office and where cause of action wholly or in part, arises at a place where it has also a subordinate office at such place.

  1. Accrual of cause of action is a sine qua non for a suit to be filed. Cause of action is a bundle of facts which is required to be proved to grant relief to the plaintiff. Cause of action not only refers to the infringement but also the material facts on which right is founded. Section 20 of the CPC recognises the territorial jurisdiction of the courts inter alia where the cause of action wholly or in part arises. It has to be decided in each case whether cause of action wholly or in part arises at a particular place, as held by this Court in Rajasthan High Court Advocates Association v. Union of India. Thus, a plaintiff can also file a suit where the cause of action wholly or in part arises.
  2. On a due and anxious consideration of the provisions contained in section 20 of the CPC, section 62of the Copyright Act and section 134of the Trade Marks Act, and the object with which the latter provisions have been enacted, it is clear that if a cause of action has arisen wholly or in part, where the plaintiff is residing or having its principal office/carries on business or personally works for gain, the suit can be filed at such place/s. Plaintiff(s) can also institute a suit at a place where he is residing, carrying on business or personally works for gain de hors the fact that the cause of action has not arisen at a place where he/they are residing or any one of them is residing, carries on business or personally works for gain. However, this right to institute suit at such a place has to be read subject to certain restrictions, such as in case plaintiff is residing or carrying on business at a particular place/having its head office and at such place cause of action has also arisen wholly or in part, plaintiff cannot ignore such a place under the guise that he is carrying on business at other far flung places also. The very intendment of the insertion of provision in the Copyright Act and Trade Marks Act is the convenience of the plaintiff. The rule of convenience of the parties has been given a statutory expression in section 20 of the CPC as well. The interpretation of provisions has to be such which prevents the mischief of causing inconvenience to the parties.”
  3. The learned Senior counsel would also place reliance on the ruling of the Hon’ble High Court of Bombay reported in AIR 2016 Bombay 217 in the case of Manugraph India Limited, Mumbai vs. Simarq Technologies Pvt. Limited, Kolhapur and othersand particular reference is made to paragraph Nos.6 and 13. The same are extracted for the sake of convenience “6. Almost the entirety of the discussion before me has been on a reading of Sanjay Dalia’s case. Before proceeding to a consideration of the rival submissions on that decision, it is perhaps more appropriate to set out my understanding of the pre-and post-Sanjay Dalia jurisdictional regimes. Section 134(2)of the Trade Marks Act, 1999 (“TMA 1999”) parallels Section 62(2) of the Copyright Act, 1957 (“CA 1957”). Both depart from the usual jurisdictional provision we find in Section 20 of the Code of Civil Procedure, 1908 (“CPC”). Under the CPC, a suit must be brought (a) where all the defendants reside or work; or (b) where any of several defendants live or reside provided there is either prior leave or the others acquiesce in the jurisdiction; or (c) where the cause of action arises wholly or in part. Sections 134(2)and 62(2), on the other hand, do not have any such requirement. They simply say that a suit in infringement or passing off can be brought where the plaintiff resides or works. In the case of a corporate, this could be where it has its office or offices. In the pre-Sanjay Dalia era, this often resulted in much mischief: a corporate would have several satellite offices scattered around the country. Using these provisions, it would bring infringement and passing off suits in the courts in whose jurisdiction those satellite or field offices were located, even though the defendants were not there and no cause of action arose there. This was precisely the mischief the Sanjay Dalia court addressed. It did so not in the manner the Defendants suggest today, i.e., by a wholesale rewriting of Sections 134(2) and 62(2), for that could never have been the Supreme Court’s intention or purpose. There is also no indication, as we shall see, of any kind of ‘reading down’ or ‘imputing in’ to the words of intellectual property statutes. To the contrary: the Sanjay Dalia decision closely interwove the special provisions of those two statutes with the regular jurisdictional provisions in the CPC, retaining the integrity and structure of each. Keeping in mind that the discussion (and the preceding discord) is largely about corporate Plaintiffs, what emerges, in my view, is this:

(a) A Plaintiff can always file a suit in a court within the local jurisdiction of which its registered office or principal office is located. This is a ‘pure’ Section 134(2) or Section 62(2) invocation of jurisdiction. The location of the defendants and the place of accrual of the cause of action is inconsequential. Sections 134(2) and 62(2) do not refer to the situs of the cause of action or the situs of the defendants’ location at all.

(b) Where a Plaintiff also has a satellite or field office elsewhere, it may bring suit in a court in that location, but this is no longer a Section 134(2) or Section 62(2) jurisdictional invocation. The jurisdiction is governed by Section 20 of the CPC; and hence, one of the defendants must be found there; or leave must be obtained there if some of the defendants are within that jurisdiction and some outside it; or it must be shown that the cause of action has arisen, wholly or in part, in that jurisdiction. This option does not oust or limit the plaintiff’s right to move under Section 134(2) or Section 62(2).

(c) A plaintiff can always travel to where the defendant is located or where the cause of action arises and bring suit there. This again is purely a Section 20 CPC invocation of jurisdiction. It has nothing at all to do with Section 134(2) or Section 62(2). The plaintiff need not have any office in that location.

  1. As I have noted, Section 20 of the CPC deals with the ‘ordinary’ jurisdictional situs. There is then the explanation to Section 20(c). This is a very interesting explanation. It tells us that when it comes to defendant companies, these are deemed to ‘carry on business’ at their sole or principal office in India; or if they have a subordinate office where the cause of action, then in that place. The important thing about this explanation is that it relates to defendant corporations, not plaintiffs.”
  2. Hence, he would pray that the appeals be allowed and consequently, allow the application and thereby set aside the rider imposed in the order impugned.
  3. Per contra, the learned counsel for the defendant would vehemently oppose the grant of relief and he would invite the attention of the Court to the plaint pleadings. He would contend that it is the specific case of the plaintiff that the defendant is carrying on business in the name and style ‘Manipal Motor’ and ‘Manipal Career Academy’, which are alleged to be deceptively similar to the plaintiff’s well established Trade Mark and thereby infringed the proprietary right of the plaintiff. It is further pleaded that the cause of action arose on 21.07.1994 when the defendant incorporated the private limited company and the plaintiff also has an administrative or subordinate office in Bengaluru and by virtue of provisions of Section 134of the Trade Marks Act, the instant Court is vested with the jurisdiction to try the suit and grant the reliefs as prayed for. He would further contend that the application-I.A.No.8 is not maintainable in the light of the facts asserted in the plaint. That the application is misconceived and is on account of a misreading of the judgment of the Hon’ble Apex Court rendered in Indian Performing Rights Society Ltd. case stated supra.
  4. Learned counsel would further draw the attention of the Court to the averments in the objections filed on behalf of the defendant. He would further contend that the application itself is not maintainable and the same is vitiated by malafide with an intention of wreaking havoc and causing monetary loss. He would draw the attention of the Court to the ruling of the Hon’ble Apex Court in Indian Performing Rights Society Ltd. case stated supra, wherein it has been held that if the plaintiff is residing or carrying on business in the place where the cause of action arose wholly or in part, he has to file the suit in that place only.
  5. Learned counsel would further contend that the trial Court has blindly accepted the application without rendering a finding as to whether the Court has or does not have jurisdiction to adjudicate the suit. He would further contend that the Court having recorded the admission of the plaintiff that both plaintiff and defendant have offices and are carrying on business within its territorial jurisdiction ought to have rejected the application and Order 7 Rule 10A of CPC does not vest any right with the plaintiff to prefer an application of the instant nature praying for return of the plaint. It is further vehemently contended that the order is bad as the trial Court has passed the impugned order without application of mind and without reference to the document placed before it demonstrating the usage of the Trade Mark within the territory of the trial Court. He would contend that the impugned order is a non-speaking order as the various contentions raised by the defendant have not been considered and would pray for allowing the appeal and set aside the order dated 05.01.2017 passed on IA.No.8 in O.S.No.8203/2014.
  6. In the above facts and circumstance, the issue that arises for consideration in these appeals is:
  7. Whether the trial Court is right in allowing the application preferred by the plaintiffpraying for return of the plaint without following the procedure as set out under Order 7 Rule 10A of CPC?

Answered in the Affirmative.

  1. Whether the trial Court has been divested of the jurisdiction to try the suit in the light of the law laid down by the Apex Court in the case of Indian Performing Rights Society Ltd v.

Sanjay Dalia and another reported in (2015) 10 SCC 161?

Answered as per final order.

  1. The provisions relevant to adjudicate the issues are Section 20 of the Civil Procedure Code, 1908 and Section 134of the Trade Marks Act. The provisions read as under: Section 20 of CPC “20. Other suits to be instituted where defendants reside or cause of action arises. – Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-

(a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the Suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit,actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises. Section 134 of the Trade Marks Act

  1. 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 “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 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.”

  1. This Court has perused the averments made in the application, plaint, the objections preferred by the defendants, the reasons assigned by the trial Court to allow application-I.A.No.8 and the dictum of the Hon’ble Apex Court as laid down in the case of Indian Performing Rights Society Ltd. case stated supra. This Court is of the considered opinion that the order appealed is liable to be set aside for the following reasons:

Upon a detailed reading of the order appealed, it is starkly apparent that the trial Court has not even made an endeavour to reason as to whether the Court actually stood divested of the jurisdiction to try the suit in the light of the law laid down by the Hon’ble Apex Court in the case of Indian Performing Rights Society Ltd. case stated supra. The issue stands further compounded by the averments in the affidavit filed in support of the application. The only averment of note that has any relevance to the relief sought is set out in para 4 of the application, which reads as under:

“4. That the Appellant/Plaintiff respectfully submits that in view of the interpretation of Section 134 of the Trade Marks Act, 1999 provided by the Hon’ble Supreme Court of India in the aforesaid judgment, this Hon’ble Court may not have the territorial jurisdiction to entertain the present suit.”

(emphasis by the court)

  1. A bare reading of the averment would demonstrate that even the applicant has not categorically asserted or set out the ground on which the trial Court stood divested of the jurisdiction to try the suit. There can be no dispute with the fact that the law in this regard is settled by the Hon’ble Apex Court. The Hon’ble Apex Court at para 17 of the Indian Performing Rights Society Ltd. case stated supra has observed that the accrual of the cause of action is a sine qua non for the suit to be filed and cause of action is a bundle of facts which requires to be proved to enable the Court to grant relief to the plaintiff. The cause of action, not only refers to the infringement but also the material facts on which the rights are founded. It is the requirement of law that it has to be independently decided in each case by the concerned Court as to whether the cause of action arises wholly or in part thereby conferring the jurisdiction of the Court.
  2. In the instant case, the trial Court has not even considered the issue as to whether the cause of action arises within its jurisdiction and even without rendering a finding on the same has proceeded to hold that jurisdiction is conferred only on the Court within whose jurisdiction the plaintiff has its principal office and carries on the business. The trial Court at paragraph 10, has placed reliance on the ruling of the Hon’ble Apex Court in the case of Indian Performing Rights Society Ltd. stated supra and has proceeded to hold that the plaintiff has to bring the action against the defendant only at the place of its principal office and not at the place where its branch is situated. The said finding, in the opinion of this Court is wholly contrary to the law laid down by the Hon’ble Apex Court and the provisions of Section 134of the Trade Marks Act which clearly confers an additional forum or place of suing, in addition to the forums as envisaged under Section 20 of the CPC, 1908.
  3. A   bare     reading   of    para    18      of    the    Indian Performing     Rights    Society       Ltd.    stated        supra   clearly

 

obviates any detailed discussion on the point. The Hon’ble Apex Court has entered into a detailed interpretative exercise in order to eliminate and prevent the mischief, which is likely to cause to the parties. The Hon’ble Apex Court has held that if cause of action arise wholly or in part in a place where the plaintiff is residing or having its principal office/carries on business or personally works for gain, the suit can be filed at such a place. That the plaintiff can also institute the suit at a place where he is residing, carrying on business or personally works for gain de hors, the fact that the cause of action has not arisen at a place where he or they are residing or any one of them is residing, carries on business. But this right to institute the suit at such a place has to be read subject to certain restrictions, such as, in case, the plaintiff is residing or carrying on business at a particular place and having its head office and at such place the cause of action has also arisen wholly or in part, then the plaintiff cannot ignore such a place under the guise that he also has a subordinate office at the other place. That the rule of convenience has to be given an interpretation which would prevent such a mischief and avert any attempt of the plaintiff to try and harass the defendant by attempting to institute cases in far-flung places where the plaintiff has a branch or subordinate office. Further at para 20 of the Indian Performing Rights Society Ltd. stated supra, the Hon’ble Apex Court has been pleased to hold as follows:

“20. In our opinion, in a case where cause of action has arisen at a place where the plaintiff is residing or where there are more than one such persons, any of them actually or voluntarily resides or carries on business or personally works for gain would oust the jurisdiction of other place where the cause of action has not arisen though at such a place, by virtue of having subordinate office, the plaintiff instituting a suit or other proceedings might be carrying on business or personally works for gain.”

  1. Proceeding further, the Hon’ble Apex Court in para. 52 has laid down the law as follows:

“52. In our opinion, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act have to be interpreted in the purposive manner. No doubt about it that a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain. He need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises. However, if the plaintiff is residing or carrying on business etc. at a place where cause of action, wholly or in part, has also arisen, he has to file a suit at that place, as discussed above.”

  1. On a combined reading, it is apparent that the dictum of the judgment is that though the rule of convenience envisages multiple forums and the plaintiff can exercise its right to institute the suit in the forum of its choice, the right has been interpreted in a purposive manner in order to eliminate the mischief, that is the plaintiff using it as tool against the defendant by instituting proceedings in far off place.
  2. The Hon’ble Apex Court at para 14 has observed as follows:

” ……. Thus, ‘corporation’ can be sued at a place having its sole or principal office and where cause of action wholly or in part, arises at a place where it has also subordinate office at such place.”

  1. Thus in the light of the above discussion and the law laid down by the Hon’ble Apex Court, it was imperative upon the trial Court to conclude as to whether any cause of action has arisen wholly or in part within its jurisdiction before it rendered a finding that the Court stood divested of jurisdiction in the light of judgment rendered by the Hon’ble Apex Court in the case of Indian Performing Rights Society Ltd. stated supra.
  2. This Court concludes so in the light of the observations of the Hon’ble Apex Court at para 50 thereby implying that the rule of convenience cannot be stretched to such length, so as to permit reliance on extraneous factor for deciding the issue of territorial jurisdiction. Further, the trial Court has also not followed the mandate of the provisions of sub-Rule 2 of Rule 10A of Order 7 of CPC amounting to a procedural irregularity thereby vitiating a finding rendered by the Apex Court.

Hence, the appeals are allowed. The order dated 05.01.2017 passed on I.A.No.8 in O.S.No.8203/2014 is set aside. The application is remitted back for consideration afresh by the trial Court after affording opportunity to the parties. The trial Court while so deciding the application shall first conclude as to whether the Court has no jurisdiction to try the suit and thereafter, consider and dispose of the application in accordance with law.

In view of the above there shall be no order as to costs.

 

 

 

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