TMI Blog2005 (12) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... iness in Delhi. It is not in dispute before us that the application for registration of the trade mark was to be filed either at Bombay or at Ahmedabad. The objections thereto by the plaintiff were also required to be filed at the said places. The jurisdiction of the Delhi court could not have been invoked only on the ground that advertisement in respect thereof was published in the Trade Marks Journal. Section 62 of the 1957 Act, therefore, will have no application. The plaintiff has no branch office at Delhi. Its manufacturing facilities are not available at Delhi. Both its trade mark and copyright are also not registered at Delhi. In this case we have not examined the question as to whether if a cause of action arises under the 1957 Act and the violation of the provisions of the Trade Marks Act is only incidental, a composite suit will lie or not, as such a question does not arise in this case. - C.A. 6248 OF 1997 - - - Dated:- 15-12-2005 - P. BISHESHWAR SINGH AND S.B. SINHA, JJ. Extent of jurisdiction of a civil court to determine a lis as regard infringement of the provision of the Copyright Act, 1957 (for short "the 1957 Act") and the Trade and Merchandise M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and its labels and wrappers being used by the plaintiff in his distinctive get- up, make-up, colour scheme, combination and manner of writing." The Respondent preferred an appeal thereagainst before the High Court of Judicature at Allahabad which was marked as First Appeal From Order No. 401 of 1992. By an order dated 5.5.1997, the High Court inter alia held that the Civil Court had no territorial jurisdiction to try the suit. The High Court was further of the opinion that 'Dodha' is a name of a variety of sweet and it is not a special product which is manufactured by the plaintiff alone. The Appellant is, thus, before us. Civil Appeal No. 16 of 1999 : The defendant is the Appellant herein. Both the plaintiff and Appellants carry on business in diesel engines at Rajkot in the State of Gujarat. A suit on the original side of the Delhi High Court was filed inter alia for perpetual injunction restraining infringement of trade mark, copyright, trading style, passing off and for rendition of accounts. It has been averred in the plaint that the plaintiff has registered a trade mark 'Field Marshal'. Its label 'Field Marshal' is said to be registered also under the Copyright Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in view of the fact that the defendants had sought for registration of trade mark at Delhi, and thirdly, the defendants are selling goods under the impugned trade mark at Delhi and, thus, plaintiff's right thereover had been violated at Delhi. The Division Bench negatived the contention raised on behalf of the Appellants herein that as both the parties are resident of and working for gain at Rajkot and no sale having been effected by them within the territorial jurisdiction of the court, the Delhi High Court had no territorial jurisdiction to entertain the suit. On the first contention, the Division Bench was of the opinion that a composite suit based on infringement of trade mark, copyright, passing off and for rendition of accounts of profits as also injunction having been filed, the Delhi High Court had the territorial jurisdiction to entertain the suit. On the second contention, the Division Bench relying on or on the basis of its earlier decision in Jawahar Engineering Co. Ors. Vs. M/s. Jawahar Engineering Pvt. Ltd. [AIR 1984 Delhi 166] came to the opinion that a plaintiff can even seek a restraint order against the threat that is still to materialize once it comes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace where it has also a subordinate office, at such place." The jurisdiction of the District Court to determine a lis under the 1957 Act as also the 1958 Act must, thus, be instituted where the whole or a part of cause of action arises. Sub-section (2) of Section 62 of the 1957 Act provides for an additional forum therefor in the following terms : "(2) For the purpose of sub-section (1), a "district court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain." Admittedly, no such additional forum had been created in terms of the provisions of the 1958 Act. The objects and reasons for engrafting the said provision show that the same was done to enable the authors to file a suit for violation of the 1957 Act at the place where they reside. Submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1958 Act. It is trite law that a judgment and order passed by the court having no territorial jurisdiction would be nullity. In Kiran Singh and Others vs. Chaman Paswan and Others [AIR 1954 SC 340], this Court observed : "It is a fundamental principle well-established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties A judgment or order passed by a court lacking territorial jurisdiction, thus, would be coram non judice. Thus, if a district court, where the plaintiff resides but where no cause of action arose otherwise, adjudicates a matter relating to infringement of trade mark under the 1958 Act, its judgment would be a nullity. Mr. S.K. Bansal, the learned counsel appearing for the Appellants, however, placed strong reliance on a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 5(3) of the 1958 Act, the Central Government has issued a notification in the official gazette defining the territorial limits within which an office of the Trade Marks Registry may exercise its functions. The office of the Trade Marks Registry at New Delhi exercises jurisdiction over the States of Haryana, Himachal Pradesh, Jammu Kashmir, Punjab, Rajasthan and Uttar Pradesh and the Union Territory of Chandigarh and National Capital Territory of Delhi. Whereas in M/s. Dhodha House v. S.K. Maingi, no such application has been filed, admittedly in M/s Patel Field Marshal Industries Ors. v. M/s P.M. Diesels Ltd, the Delhi office has no jurisdiction as parties are residents of Rajkot and an application was filed by the Appellant for registration of its trade mark at Bombay. If an objection is to be filed, the same has to be filed at Bombay. An advertisement by itself in a journal or a paper would not confer jurisdiction upon a court, as would be evident from the following observations of this Court in Oil and Natural Gas Commission v. Utpal Kumar Basu and Others [(1994) 4 SCC 711] : "Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re than one such persons, any of them actually and voluntarily resides or carries on business or presently works for gain. It prescribes an additional ground for attracting the jurisdiction of a court over and above the "normal" grounds as laid down in Section 20 of the Code." In that case an allegation of violation of copyright was made, wherefor the jurisdiction of the court was sought to be attracted stating : "(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." No infringement of the trade mark as such was, thus, in question in that case. In any event, the questions which have been raised herein had not been raised in Exphar SA (supra). It is well-settled that a decision is an authority what it decides and not what can logically be deduced therefrom. [See Bharat Forge Co. Ltd. v. Utam Manohar Nakate (2005) 2 SCC 489; M.P. Gopalakrishnan Nair and Anr. V. State of Kerala an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that the Court may have jurisdiction to entertain the suit with respect to a cause of action under the Copyright Act under Section 62 of the Act can be of no avail. I am therefore of the opinion that the Court at Ghaziabad has no territorial jurisdiction to try the suit." In the event, the averments in the plaint disclose a cause of action under the Copyright Act, indisputably, the same would survive but if the cause of action disclosed is confined only to infringement of Trade and Merchandise Act, or of passing off an action, the suit would not be maintainable. The Delhi High Court in its judgment placed strong reliance upon a judgment of the same court in Tata Oil Mills Co. Ltd. v. Reward Soap Works [AIR 1983 Delhi 286], wherein it was held that a composite suit based on infringement of trade mark, copyright, passing off and for rendition of accounts of profits, seeking to restrain the defendants from infringing its trade mark and wrapper claiming the same to be identical with or deceptively similar to the wrapper of the plaintiff mark, is maintainable, holding : "The comparative scope of a copyright and trade mark registration are different, even though where a desi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on therein. Such an omission may be held to be a conscious action on the part of the Parliament. The intention of the Parliament in not providing for an additional forum in relation to the violation of the 1958 Act is, therefore, clear and explicit. The Parliament while enacting the Trade Marks Act, 1999 provided for such an additional forum by enacting sub-section (2) of Section 134 of the Trade Marks Act. The court shall not, it is well well-settled, readily presume the existence of jurisdiction of a court which was not conferred by the statute. For the purpose of attracting the jurisdiction of a court in terms of sub-section (2) of Section 62 of the 1957 Act, the conditions precedent specified therein must be fulfilled, the requisites wherefor are that the plaintiff must actually and voluntarily reside to carry on business or personally work for gain. In Dhodha House (supra), admittedly the plaintiff-Appellant neither resided at Ghaziabad nor carried on any business at the place of residence of the respondent. In Patel Field Marshal (supra), the registered office of the plaintiff-firm was at Rajkot. Ordinarily, the residence of a company would be where registered office is [See ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta, cannot be said to do business in Amritsar. But a Bombay firm that has a branch office at Amritsar, where orders are received subject to confirmation by the head office at Bombay, and where money is paid and disbursed, is carrying on business at Amritsar and is liable to be sued at Amritsar. Similarly a Life Assurance Company which carries on business in Bombay and employs an agent at Madras who acts merely as a Post Office forwarding proposals and sending moneys cannot be said to do business in Madras. Where a contract of insurance was made at place A and the insurance amount was also payable there, a suit filed at place B where the insurance Co. had a branch office was held not maintainable. Where the plaintiff instituted a suit at Kozhikode alleging that its account with the defendant Bank at its Calcutta branch had been wrongly debited and it was claimed that that court had jurisdiction as the defendant had a branch there, it was held that the existence of a branch was not part of the cause of action and that the Kozhikode Court therefore had no jurisdiction. But when a company through incorporated outside India gets itself registered in India and does business in a pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahmedabad. The objections thereto by the plaintiff were also required to be filed at the said places. The jurisdiction of the Delhi court could not have been invoked only on the ground that advertisement in respect thereof was published in the Trade Marks Journal. Section 62 of the 1957 Act, therefore, will have no application. The plaintiff has no branch office at Delhi. Its manufacturing facilities are not available at Delhi. Both its trade mark and copyright are also not registered at Delhi. Our attention has been drawn to the provisions of Section 45 of the Trade Marks Act; sub-section 2(m) whereof shows that the marks includes a device, brand, brand, heading , label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. It may be so that in a given case if such label is registered, a violation thereof may give rise to cause of action under the said Act; but only because in a given case, the activities on the part of the defendant may give rise to a cause of action both under the 1958 Act as also under the 1957 Act, the same would not mean, irrespective of the nature of violation, the plaintiff would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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