CIMA No. 211/2009, COS 2/09 and connected CMPs.. Case: Escorts Construction Equipment Ltd. Vs Gautam Engineering Equipment Ltd. & Anr.. Jammu and Kashmir High Court

Case NumberCIMA No. 211/2009, COS 2/09 and connected CMPs.
CounselFor Appellant: M/s. SK Bansal and Keshav Thakur, Advs. and For Respondents: M/s. Sunil Sethi, Sr. Adv., and Pranav Kohli, Adv.
JudgesSunil Hali, J.
IssueCopyright Act, 1957 - Section 62(2); Civil Procedure Code, 1908 - Section 20; Copyright Act, 1957 - Sections 51, 62
Citation2010 (44) PTC 636 (J&K)
Judgement DateAugust 26, 2010
CourtJammu and Kashmir High Court


Sunil Hali, J.

  1. Lack of territorial jurisdiction in entertaining a suit filed at Jammu, by the appellant-plaintiff (here-in-after referred to as the appellant), is the subject matter of controversy in the present appeal and the civil suit filed by the appellant.

  2. Two suits were filed by the appellant before the learned Additional District Judge, Jammu, seeking injunction against the defendant-respondents (here-in-after referred to as the defendants), for copying its industrial drawings as also violating the Patent and design granted to the appellant. In one of the suit, the learned trial court, while dealing with an application under Order 39 Rules 1 and 2 CPC, read with Section 151, vide order impugned dt. 6th of May'09, after hearing the parties both on maintainability of the suit as well as for grant of temporary injunction, held that it has no territorial jurisdiction to entertain the suit. It was further held that no cause of action either wholly or in part has arisen in favour of the appellant within the jurisdiction of the court nor the plaint discloses any cause of action against the defendant No. 2, having taken place in Jammu. It is this order, which is the subject matter of challenge in the CIMA, referred to above.

  3. So far as the connected suit is concerned, this court while deciding the petition CTA 8/09 along with connected CMP, under Section 24 of the Civil Procedure Code, filed by the appellant, vide order dt. 20th of March'09, has directed the transfer of the said suit along with the application for ad-interim injunction and that's how the present suit along with the above CIMA, is before this court.

  4. For the purposes of determination of issue, the appeal is taken up for narrating the facts and controversy involved.

  5. The appellant is a Company registered and incorporated under the provisions of the Companies Act, 1956, having its registered office at New Delhi. The Research and Development Wing of the Company has developed two pick and carry cranes namely Hydra-12 and Hydra-14 (here-in-after called the products). It has also developed major components used in these products. The said components are stated to be new and novel. The said industrial drawings are said to artistic in nature. The appellant is the owner and proprietor of artistic work involved in the said industrial drawings and holds the copyrights of the said industrial drawings and the same are protected under the provisions of the Copyright Act, 1957.

  6. It is important to note that the said products are registered under the Patents Act, 1970 and Design Act, 2000. The appellant is making commercial use of the said industrial drawings in the regular course of its business by converting these two dimensional industrial drawings into three dimensional finished products i.e. Hydra-12 and Hydra-14 cranes.

  7. The case of the appellant is that he being the sole proprietor of the industrial drawings of the said products has the absolute right to sell these products in the market and no one can be permitted to use the same or infringe copies thereof either in two dimension or three dimensional form or to make any product on the basis of the said industrial drawings of the appellant without his leave and licence. It is contended that the defendant No. 2 has launched its cranes in the market w.e.f. second week of Dec'08, and has appointed defendant No. 1 as its agent/dealer, for selling the said cranes. It is stated that the said impugned product launched by the defendant No. 2 is exactly same and similar to that of appellant's product including the industrial drawings in each and every aspect i.e. shape, measurement and artistic features. It is contended that since the defendants are not the author and owner of impugned drawings of the impugned product, as such, they are infringing the copies of the products of the appellant company. The defendants are making the impugned product by copying the industrial drawings of the appellant and are offering the same for sale to the public by violating, infringing and passing off the appellant's copyrights in the said industrial drawings and the impugned product, as a result of which, the appellant is suffering a lot of loss in business and good-will and his statutory rights in copying the industrial drawings are infringed by the defendants.

  8. It is further contended that the defendant No. 1 is working for gains at Jammu and sells the impugned product at Jammu, on behalf of defendant No. 2, as such, the cause of action has accrued at Jammu. It is stated that as the appellant is selling its product in Jammu through M/s Evergreen Engineering, Gangyal, Jammu, therefore, this court has the territorial jurisdiction to entertain the suit.

  9. The stand of the defendants is that this court has no jurisdiction to try and entertain the suit. It is stated that the defendant No. 1 has not sold the impugned product within the territorial jurisdiction of this court as alleged by the appellant. More-over, the defendant No. 2 has no registered branch office at Jammu. It is contended that in...

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