TMI Blog2004 (2) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... ged infringement to which the threat related was not in fact an infringement of any legal right of the person making such threat. As we have seen, the Division Bench disposed of the appeals solely on the issue of jurisdiction. Its conclusion on the issue is insupportable. The impugned decision is accordingly set aside and the matter is remanded back to the Division Bench for disposal of the appeals filed by the respondents and appellants on merits. Pending the decision of the Division Bench, the order passed by the learned Single Judge which we have quoted earlier will continue. The appeals are accordingly allowed with costs. - C.A. 1189 OF 2004 - - - Dated:- 20-2-2004 - P. VENKATARAMA REDDI AND RUMA PAL, JJ. JUDGMENT Leave granted. The issue in these appeals is whether the High Court of Delhi has the jurisdiction under Section 62(2) of the Copyright Act, 1957 to entertain a suit filed by the appellants and one other. The suit was filed by the appellants and M/s Shreechem Laboratories against the two respondents, the first of whom is the Director of the respondent No. 2. According to the plaint, the appellant No. 1 manufactures a medicine for the treatment of malaria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the 'Maloxine' carton; for delivery up of the infringing goods and for accounts on account of the use of the impugned mark. The jurisdiction of the Delhi High Court was sought to be attracted on the bases: (a) the copyright of the plaintiffs (appellants) in the 'Maloxine' carton was being infringed by the respondents; (b) the plaintiffs (appellants) carry on business in Delhi and one of them has a registered office in New Delhi. It was also stated that the defendants carry on business for profit in New Delhi within the jurisdiction of the High Court. On the interlocutory application filed by the appellants in the suit, an ex-parte interim order was passed in favour of the appellants on 26th October 1998 by a learned Single Judge of the Delhi High Court. The interim order was confirmed on 28th September 1999. It does not appear from the judgment that the respondents had at all raised the issue regarding lack of territorial jurisdiction before the Single Judge. Although a prima facie view has been expressed that there was no doubt about the territorial jurisdiction of the Court but this was not with reference to any argument raised by the respondents. The operative portion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the Court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the Division Bench should have taken the allegations contained in the plaint to be correct. However, the Division Bench examined the written statement filed by the respondents in which it was claimed that the goods were not at all sold within the territorial jurisdiction of the Delhi High Court and also that the respondent No. 2 did not carry on business within the jurisdiction of the Delhi High Court. Having recorded the appellants' objections to these factual statements by the respondents, surprisingly the Division Bench said: "Admittedly the goods are being traded outside India and not being traded in India and as such there is no question of infringement of trademark within the territorial limits of any Court in India what to of Delhi". Apart from the ex-facie contradiction of this statement in the judgment itself, the Division Bench erred in going beyond the statements contained in the plaint. The Division Bench has also erred in its construction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional ground for attracting the jurisdiction of a Court over and above the 'normal' grounds as laid down in Section 20 of the Code. Even if the jurisdiction of the Court were restricted in the manner construed by the Division Bench, it is evident not only from the cause title but also from the body of the plaint that the appellant No. 2 carries on business within the jurisdiction of the Delhi High Court. The appellant No. 2 is certainly "a person instituting the suit". The Division Bench went beyond the express words of the statute and negatived the jurisdiction of the Court because it found that the appellant No. 2 had not claimed ownership of the copyright of the trademark infringement of which was claimed in the suit. The appellant No. 2 may not be entitled to the relief claimed in the suit but that is no reason for holding that it was not a person who had instituted the suit within the meaning of Section 62(2) of the Act. Furthermore, the appellants' plaint said that the 'cease and desist' notice was sent to the appellant No. 2 at its office in New Delhi and in that notice it was alleged that the appellant No. 2 had infringed the copyright of the respondent No. 2 to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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