Topic: Lachhman Das Behari Lal vs Padam Trading Co. And Ors - Copyright Law

Lachhman Das Behari Lal vs Padam Trading Co. And Ors.
Delhi High Court - Bench: R Chopra - date of Judgment: 13 September, 2002

Delhi High Court observed that the plaintiff being a firm functioning at Delhi, the suit filed by it in the Delhi courts is maintainable and is not liable to be rejected under Order 7 Rule 11 of the CPC as prayed. The Court further observed that the plea regarding want of territorial jurisdiction is not covered by Order7 rule 11 of CPC.  The court observed that even if it is held that this court has not the territorial jurisdiction, the plaint cannot be rejected. At the most it can be returned for presentation to the proper court.

JUDGMENT

R.C. Chopra, J.

1. This application under Order 7 Rule 11 read with Section 151 of the CPC has been filed by the defendants for the rejection of the plaint for want of territorial jurisdiction.

2. I have heard learned counsel for the applicants/defendants and learned counsel for the plaintiff-respondent. I have gone through the records.

3. The facts relevant for the disposal of this application, briefly stated, are that the plaintiff firm has filed a suit for permanent injunction restraining the defendants from infringing its trade mark, copyrights, passing off and rendition of accounts in respect of snuff being sold by plaintiff under the Registered Trade Mark "SWAMI". The plaintiff has claimed not only trade mark rights in its favor but registered copyrights also in respect of the label which carries seven portraits of the great grand father of the partners of the plaintiff printed in a unique design, having distinctive colour scheme and arrangement of features. The defendants are alleged to be infringing not only the trade mark but the copyrights also of the plaintiff firm and passing off their goods as those of the plaintiff. In para 29 of the plaint, it has been alleged that the author of the artistic work, and the plaintiff firm, the owner of the artistic work reside in Delhi and are having their business at Delhi and as such as per Section 62(2) of the Copyright Act, 1957 this Court has territorial jurisdiction to try the suit.

4. In their application under Order 7 Rule 11 CPC the defendants-applicants contend that the defendants reside and carry on business and are working for gain at Jabalpur. All the sale transactions had been carried out by the defendants in the said State and no cause of action had arisen in favor of the plaintiff within the territory of Delhi. Referring to Sections 105 and 106 of the Trade and Merchandise Act, 1958, it is submitted that since no sale transaction was carried out within the territorial jurisdiction of this Court the suit should be rejected for want of territorial jurisdiction. The defendants rely upon the judgment in Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Ltd., Simla v. Mohan Meakin Breweries Limited, Solan reported in 1981-PTC page 74.

5. The plaintiff has opposed the application of the defendants mainly on the ground that in view of Section 62(2) of the Copyright Act 1957 and the averments made in the plaint in regard to the violation of copyrights the present suit is maintainable in Delhi Courts. The plaintiff relies upon a Division Bench judgment of this Court in P.M. Diesels Ltd. v. Patel Field Marshal Industries reported in 1998 Delhi

225. They also rely upon a judgment of this Court in Tata Oils Mills Co. Ltd. v. Reward Soap Works reported in AIR 1983 page 286 which was referred to by the Division Bench also.

6. At this stage while dealing with the defendant's application under Order 7 Rule 11 of the CPC the Court has to go by the averments made in the plaint only and not by the defense raised by the defendants. If the averments made in the plaint even prima facie suggest that this Court has territorial jurisdiction the suit has to be proceeded with in accordance with law. The defendants are at liberty to raise this plea in their written statement also so that this issue is tried and decided by the Court.

7. A perusal of the averments made by the plaintiff in the plaint shows that the plaintiff is not alleging violation of its trade mark only but violation of its copyright also in regard to its product and as such Section 62(2) of the Copyright Act 1957 comes into play. This Section is an exception to the rules relating to the territorial jurisdiction of the Courts and permits a plaintiff to bring an action for the violation of his copyrights even at a place where the plaintiff voluntarily resides or carries on business or works for gain. In Tata Oil Mills Co. Ltd. (Supra) decided by a learned Single Judge of this Court, it was held that the comparative scopes of a copyright and trade mark registration are different even though where a design or a wrapper is registered under the Copyright Act, there is, to an extent, an overlapping between the two remedies. It was observed that some controversy is possible as to whether the jurisdiction of the Court to entertain an action of the infringement of copyright confers jurisdiction to deal with the corresponding infringement of trade mark also where both constitute part of a composite suit but there would be no doubt about the jurisdiction of Court to deal with infringement of copyright. In the Division Bench judgment of M/s P.M. Diesel Limited (supra) the Court considered the judgment of the Punjab and Haryana High Court also in Himachal Pradesh Horticulture Produce Marketing (Supra) but relying upon on the judgment of Tata Oil Mills Company Limited held that in a case where the plaintiff brought a composite suit based on infringement of trade mark, copyright, passing off and for rendition of Accounts seeking to restrain the defendants from infringing its trade mark and copyright, there may be an overlapping between the two remedies but there is no doubt about jurisdiction of the Court in relation to infringement of copyright. In para 11 of the judgment, the Division Bench refused to accept the contention of the defendants that prima facie Delhi Courts had no territorial jurisdiction. In Himachal Pradesh Horticulture Produce Corporation matter (supra) the Punjab and Haryana High Court was dealing with grounds under Section 105 and 106 of the Trade and Merchandise Marks Act, 1958 only and had not considered the implications of Section 62 of the Copyright Act 1957.

8. Therefore, this Court is of the considered view that in view of averments in the plaint in regard to the infringement of its copyrights, Section 62(2) of the Copyright Act, 1957 comes into play. The plaintiff being a firm functioning at Delhi, the suit filed by it in Delhi Courts is maintainable and is not liable to be rejected under Order 7 Rule 11 of the CPC as prayed. It may be added that the plea regarding want of territorial jurisdiction is not covered by Order 7 Rule 11 of CPC. Even if it is held that this Court has not territorial jurisdiction, the plaint cannot be rejected. At the most it can be returned for presentation to the proper Court.

9. Application, therefore, stands dismissed.