CS COMM--1088/2016. Case: HSIL LIMITED Vs. MAX CERAMIC INDUSTRIES AND ANR. High Court of Delhi (India)
| Case Number | CS COMM--1088/2016 |
| Citation | NA |
| Judgement Date | February 13, 2018 |
| Court | High Court of Delhi (India) |
$~4,5&6 * IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 1082/2016 & IAs No.9787/2016 (under Order XXXIX
Rules 1&2 CPC), 14190/2016 (under Order XXXIX Rule 2A CPC), 15316/2016 (under Order I Rule 10 CPC), 15317/2016 Order VII Rule 10 CPC), 15318/2016 (under Order VII Rule CPC), 917/2017 (under Order XXXIX Rule 4 CPC), 13696/2017 (under Section 151 CPC), 14013/2017 (under Order VI, Rule CPC) & 14088/2017 (under Order XI Rule 1(5) CPC)
HSIL LIMITED ..... Plaintiff
Through: Mr. Manav Gupta, Ms. Prabhsahay
Kaur, Ms. Esha Dutta & Mr. Garg, Advs.
Versus
IMPERIAL CERAMIC AND ANR ..... Defendants
Through: Ms. Meera Kaura Patel & Ms.
Singh, Advs. AND
+ CS(COMM) 1087/2016 & IAs No.9818/2016 (under Order XXXIX Rules 1&2 CPC), 15291/2016 (under Order VII Rule 10 15292/2016 (under Order VII Rule 11 CPC) , 914/2017, 13692/2017 (under Section 151 CPC), 14014/2017 (under Order XI Rule 1(5) & 14015/2017 (under Order VI Rule 17 CPC)
HSIL LIMITED ..... Plaintiff
Through: Mr. Manav Gupta, Ms. Prabhsahay
Kaur, Ms. Esha Dutta & Mr. Garg, Advs.
Versus
GUJRAT CERAMIC INDUSTRIES ..... Defendant
Through: Ms. Meera Kaura Patel & Ms.
Singh, Advs. AND
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 1 of 21
+ CS(COMM) 1088/2016 & IAs No.9822/2016 (under Order XXXIX
Rules 1&2), 15293/2016 (under Order VII Rule 10 15294/2016 (under Order VII Rule 11 CPC), 915/2017 Order XXXIX Rule 4 CPC), 13694/2017 (under Section 151 CPC), 14011/2017 (under Order VI Rule 17 CPC) & 14018/2017 Order XI Rule 1(5) CPC).
HSIL LIMITED ..... Plaintiff
Through: Mr. Manav Gupta, Ms. Prabhsahay
Kaur, Ms. Esha Dutta & Mr. Garg, Advs.
Versus
MAX CERAMIC INDUSTRIES AND ANR ..... Defendants
Through: Ms. Meera Kaura Patel & Ms.
Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
O R D E R % 13.02.2018
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The plaintiff has instituted all these suits for permanent injunction restraining the defendant/s in each of the suits from using the trade „HINDUSTAN VITREOUS‟ or „H VITREOUS‟ or any other mark that is deceptively similar to the trade mark of the plaintiff on its products which infringes the trade mark of the plaintiff and from thereby off their goods as that of the plaintiff and for ancillary reliefs of delivery and costs.
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Each of the suits was entertained and vide ex parte ad orders therein the defendant/s in all the three suits were restrained sought and a commission issued to visit the premises of the defendants and to seize the infringing goods.
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 2 of 21
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The counsel for plaintiff on enquiry states that the plaint in all three suits is identical. This Court, for the purpose of this order, referred to the plaint and the applications in CS (Comm.) No.1082/2016.
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It is not in dispute that the defendant/s in each of the suits situated at Thangadh in Gujarat.
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It is also not in dispute that the plaintiff, besides these three had also instituted CS (Comm.) No.1382/2016 against another set defendants, also situated at Thangadh in Gujarat and the plaint in (Comm.) No.1382/2016 was also identical to the plaint in the present three suits and similar ex parte ad interim orders were issued in CS (Comm.) No.1382/2016 as well.
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The defendants in CS (Comm.) No.1382/2016 filed application under Order VII Rules 10&11 of the Code of Civil Procedure, 1908 (CPC) for return/rejection of the plaint for the reason of not disclosing this Court to be having territorial jurisdiction to entertain the suit and applications came to be adjudicated vide judgment reported as Limited Vs. Marvel Ceramics 2017 SCC OnLine Del 6783 and applications were allowed and the plaint ordered to be returned/rejected; rather than stating herein the reasons which prevailed with this Court Marvel Ceramics supra, it is deemed appropriate to set out hereinbelow the relevant paragraphs of the order dated 30th January, 2017 supra under:-
“5. Return/rejection of the plaint on the ground of lack of territorial jurisdiction is sought contending (i) that the territorial jurisdiction of this Court, in para 35 of the plaint has been invoked, referring to Section 134 of the Trade Marks Act, 1999
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 3 of 21
and not on the basis of any cause of action having accrued within the jurisdiction of the Court; (ii) that the plea of the plaintiff is also of allegedly infringing goods being sold outside Delhi; (iii) the plaintiff has expressly pleaded in para 35 of the plaint that the plaintiff does not have a branch/subordinate office in Gujarat where the defendants are located; (iv) however the plaintiff itself, at page 429 of its documents, in the document titled „Corporate Information‟ has shown having a „Regional Office‟ at Ahmedabad; (v) attention is also drawn to page 429 listing EVOK Stores, whereunder also mention is made of Gujarat Zodiac Square, S.G. Highway, Bodakd, Ahmedabad; (vi) the plaintiff has thus, in para 35 of the plaint falsely pleaded not having any branch/subordinate office in Gujarat where the defendants are located; (vii) that even otherwise, the plaintiff admittedly has its registered office at Kolkata; (viii) that the Division Bench of this Court in para 14 of Ultra Home Construction Pvt. Ltd. Vs. Purushottam Kumar Chaubey (2016) 227 DLT 320 has held that where the cause of action has accrued neither at the place of principal office nor at the place of subordinate office but at some other place, the plaintiff can be deemed to carry on business at the place of its principal office and not at the place of its subordinate office; and, (ix) thus the plaintiff herein, even if has a subordinate office at Delhi, though the same is also disputed, cannot invoke Section 134 at Delhi and can at best invoke the same at Kolkata.
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The counsel for the plaintiff has in response contended,
(i) that though the plaintiff at page 429 supra has shown regional office at Ahmedabad but thereunder has not given any address and has given only a telephone number and an e-mail address which are just „helpline numbers‟ and otherwise the plaintiff has no office at Ahmedabad or in Gujarat; (ii) the plaintiff has already filed an application under Order VII Rule 14 of the CPC in CS(COMM) No.1082/2016 titled HSIL Vs. Imperial Ceramic , CS(COMM) No.1087/2016 titled HSIL Vs. Gujarat Ceramic Industries and CS(COMM) No.1088/2016 HSIL Vs. Max Ceramic Industries which were also filed along with this suit, to place on record clarification issued in November, 2016 on the website of the plaintiff in this regard; (iii) thus the plea in the
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 4 of 21
plaint, of the plaintiff not having a branch / subordinate office in Gujarat is correct; and, (iv) that EVOK Stores are Home Stores and are of a different entity than the plaintiff and are not Stores of the plaintiff.
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With respect to the contention of the defendants / applicants qua para 14 of Ultra Home Construction Pvt. Ltd. supra, attention is drawn by counsel for plaintiff to page 799 of the documents, being a copy of the order dated 8th July, 2016 in FAO(OS)(COMM) No.35/2016 titled HSIL Ltd. Vs. Oracle Ceramic , where the Division Bench has inter alia held as under:-
“3. With respect to the impugned order dated May 11, 2016, having heard learned counsel for the parties we find that the law culled out by the learned Single Judge with respect to the decision of the Supreme Court reported as AIR 2015 SC 3479 Indian Performing Rights Society Ltd. Vs. Sanjay Dalia .
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As per said decision if plaintiff has no presence in the territory where the offending activity is carried on, remedy of territorial jurisdiction with reference of Section 134 of the Trade Marks Act, 1999 can be availed of. Though there is no positive view of a negative fact in the plaint, but there is no admission that the plaintiff i.e. the appellant has presence in Rajkot (Gujarat), where the alleged offending activity is being carried on.
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Accordingly, we set aside the impugned order dated May 11, 2016. We declare that the three suits, the plaints where of have been directed to be returned, shall continue in Delhi for the reason...
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