Appeal from Order No. 83 of 2017 and Civil Application No. 3771 of 2017 in Appeal From Order No. 83 of 2017. Case: Vimal Dairy Limited and Ors. Vs Kaira Dist. Co-operative Milk Producers Union Ltd. and Ors.. Gujarat High Court

Case Number:Appeal from Order No. 83 of 2017 and Civil Application No. 3771 of 2017 in Appeal From Order No. 83 of 2017
Party Name:Vimal Dairy Limited and Ors. Vs Kaira Dist. Co-operative Milk Producers Union Ltd. and Ors.
Counsel:For Appellant: R.R. Shah, Advocate and For Respondents: K.S. Nanavati, Ld. Sr. Adv. for Nanavati Associates, Caveator
Judges:M.R. Shah and B.N. Karia, JJ.
Issue:Code of Civil Procedure, 1908 (CPC) - Order II Rule 3; Order VII Rules 10, 11; Order XLIII Rule 1(r); Sections 20, 62; Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 - Section 13; Copyright Act, 1957 - Sections 62, 62(2); Trade Marks Act, 1999 - Sections 134, 134(1), 134(1)(c), 134(2)
Judgement Date:March 20, 2017
Court:Gujarat High Court
 
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Judgment:

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Commercial Court, Ahmedabad dated 21.02.2017 passed below Exh. 13 in Commercial Civil Suit No. 314 of 2016, by which, the Commercial Court has dismissed the said application submitted by the original defendants which was submitted to reject the plaint in exercise of powers under Order 7 Rule 10 and Order 7 Rule 11 of the Code of Civil Procedure, 1908, the original defendants have preferred the present appeal under Section 13 of the Commercial Court Act r/w Order 43 Rule 1(r) of the Code of Civil Procedure.

2. The facts leading to the present Appeal From Order in nutshell are as under:

2.1. That the respondents No. 1 and 2 herein - original plaintiffs (hereinafter referred to as the "original plaintiffs") initially instituted the Civil Suit in the Court of learned District Judge at Ahmedabad (Rural) being Civil Suit No. 6of 2012 for declaration of infringement of Trade Mark; infringement of Copyright and passing off seeking permanent injunction against the defendants. At the outset, it is required to be noted that the plaintiffs have their registered office at Anand and original defendants have their registered office within the territorial jurisdiction of Ahmedabad (Rural). That having been served with the summons/notice of civil suit, the defendants submitted the application below Exh. 13 requesting to reject the plaint under Order 7 Rule 10 and 11 of the Code of Civil Procedure, contending inter alia that the suit filed by the plaintiffs for the reliefs sought in the plaint, the Court at Ahmedabad (Rural) shall not have any jurisdiction and considering Section 134 of the Trade Marks Act and Section 62 of the Copyright Act, the suit before the Anand Court only shall be maintainable. Before the application Exh. 13 could be heard, on establishment of Commercial Court at Ahmedabad, the suit which was pending before the Court at Ahmedabad (Rural) came to be transferred to the Commercial Court, Ahmedabad, which is numbered Commercial Civil Suit No. 314 of 2016. That by impugned order, the learned Judge, Commercial Court at Ahmedabad has rejected the said application by holding that even for the reliefs of infringement of Trade Mark and/or Copyright the suit filed by the original plaintiffs at the relevant time before the Ahmedabad Rural Court shall be maintainable.

2.2. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Judge, Commercial Court at Ahmedabad passed below Exh. 13 dated 21.02.2017 in Commercial Civil Suit No. 314 of 2016, the original defendants have preferred present Appeal From Order.

3. Shri R.R. Shah, learned advocate for the original defendants has vehemently submitted that in the facts and circumstances of the case learned Commercial Court has materially erred in rejecting the application below Exh. 13 and has materially erred in holding that the suit for the reliefs prayed in the suit, more particularly, for infringement of the Trade Mark and the infringement of Copyright before the District Court, Ahmedabad (Rural) shall be maintainable.

3.1. It is further submitted by Shri R.R. Shah, learned advocate for the original defendants that as such a composite suit for infringement of Trade Mark, infringement of Copyright and passing off action shall not be maintainable.

3.2. It is further submitted by Shri R.R. Shah, learned advocate for the original defendants that it is an admitted position that the plaintiffs are having their registered office at Anand within the local territorial jurisdiction of the Anand Court. It is submitted that therefore, considering Section 134 of the Trade Marks Act and Section 62 of the Copyright Act, the suit shall be maintainable where the plaintiffs carry on business and/or is having its principal office or even the subordinate office. It is submitted that therefore, more particularly, composite suit for the aforesaid reliefs shall not be maintainable before the District Court other than District Court, Anand. In support of his above submission, he has heavily relief upon para 19, 20 and 47 of the decision of the Hon'ble Supreme Court in the case of Indian Performing Rights Society Ltd. v. Sanjay Dalia and Anr reported in AIR 2015 SC 3479. Shri Shah, learned advocate for the original defendants has also heavily relied upon the decision of the Hon'ble Supreme Court in the case of Dabur India Ltd. v. K.R. Industries reported in AIR 2008 SC 3123.

Making above submissions and relying upon the above decisions, it is requested to allow the present Appeal From Order.

4. Present Appeal From Order is vehemently opposed by Shri K.S. Nanavati, learned Senior Advocate appearing for the original plaintiffs. It is submitted that in the facts and circumstances of the case and more particularly, considering the fact that defendants are also having their registered office within the territorial jurisdiction of the District Court, Ahmedabad (Rural) and therefore, considering Section 20 of the Code of Civil Procedure, no error has been committed by the learned Commercial Court in rejecting the application Exh. 13.

4.1. It is further submitted that as observed and held by the Hon'ble Supreme Court in the case of Indian Performing Rights Society Ltd. (supra) and in the case of Exphar SA and Anr v. Eupharma Laboratories Ltd. and Anr reported in AIR 2004 SC 1682 and the learned Single Judge of this Court in the case of Lark Laboratories Ltd. v. Nabros Pharma Pvt. Ltd. reported in 2009(2) GLH 761, the jurisdiction which is conferred under Section 134 of the Trade Marks Act and Section 62 of the Copyright Act will be additional forum made available to the person in whose favour the Trade Mark under the Copyright is registered and it does not oust the forum available under Section 20 of the Code of Civil Procedure. It is submitted that therefore, considering Section 20 of the Code of Civil Procedure where the defendants are having their registered office, suit within the territorial jurisdiction of the...

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