TMI Blog2015 (7) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... hat if the cause of action has arisen at a place where the Plaintiff actually and voluntarily resides or carries on business or personally works for gain, that place is not only the appropriate but also the only place where a suit can be instituted ventilating a grievance of violation of copyright, (and since the provisions are similar) to an infringement of the trademark. In holding so we are not ignoring the provisions of either the Copyright Act or the Trade Marks Act; we are only imparting a pragmatic interpretation to them.Thus, for the aforesaid reasons mentioned by us in the judgment, we are not inclined to interfere with the orders passed by the High Court. - Decided against the appellant. - CIVIL APPEAL NOS.10643-10644 OF 2010 - - - Dated:- 1-7-2015 - Jagdish Singh Khehar and Arun Mishra, JJ. For the Petitioner : Mr. Vikas Singh Jangra,Adv. Mr. K.V. Mohan,Adv. For Respondent : Mr. Ankur Saigal, Adv., Mr. Mahesh Agarwal, Adv.,Mr. Rishi Agrawala, Adv.,Mr. E.C. Agrawala,Adv.,Ms. Kaveeta Wadia,Adv. CIVIL APPEAL NOS.10643-10644 OF 2010 JUDGMENT ARUN MISHRA, J. 1. Leave granted in SLP[C] No.8253 of 2013. 2. In the appeals, the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said order has been impugned in SLP [C] No.8253/2013. 6. It was submitted by Shri T.R. Andhiarujina, learned senior counsel representing the appellants, that a special right has been conferred under section 62(2) of the Copyright Act and section 134 of the Trade Marks Act containing non-obstante clause to the applicability of the Code of Civil Procedure or any other law for the time being in force, and the plaintiff has been conferred a right to file a suit where it carries on its business. That cannot be whittled down by combining with it the cause of action. The impediment of section 20 of the Code of Civil Procedure is not applicable. Section 62(2) of the Copyright Act and section 134 of the Trade Marks Act have no co-relation to the cause of action and suit can be filed where plaintiff resides or carries on his business or personally works for gain. The interpretation made by the High Court is contrary to the aforesaid provisions. Convenience of the defendant is not a relevant consideration. The binding decision of this Court in Exphar SA Anr. v. Eupharma Laboratories Ltd. Anr [2004 (3) SCC 688] has been violated. The judgment has not been taken into consideration t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hands of multi-national corporations to harass the defendant/s. With respect to the suit being filed by the Corporation, section 20 is not inapplicable. `Carrying on business' cannot be defined subjectively. Reliance has been placed upon Patel Roadways Ltd., Bombay v. Prasad Trading Co. [1991 (4) SCC 270]. The object of the Parliament behind enacting section 62 of the Copyright Act and section 134 of the Trade Marks Act has to be taken into consideration while interpreting the said provisions. The mischief rule of Heydon has been pressed into service so as to prevent harassment of the defendants and abuse of the said provisions. Court is duty-bound to avoid disproportionate counter mischief while interpreting a provision. Public policy and convenience to parties have to be taken into consideration. The interpretation of provisions must be such so as to avoid hardship and absurdity. The decisions relied upon by the appellants have been sought to be distinguished. 9. The Code of Civil Procedure, 1908 contains the provisions under section 20 with respect to institution of the suits where defendant resides or cause of action arose. Section 20 of the Code of Civil Procedure read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the place of their ordinary residence. The Committee feels that this impediment should be removed and the new sub-clause (2) accordingly provides that infringement proceedings may be instituted in the district court within the local limits of whose jurisdiction the person instituting the proceedings ordinarily resides, carries on business, etc. (emphasis supplied by us) Section 62 of the Copyright Act is extracted below : 62. Jurisdiction of court over matters arising under this Chapter. -- (1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction. (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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable, also because it may act as a deterrent on the infringer when he knows that he may have to go a few hundred miles off to a High Court where the author lives or where the book got published first. 12. Considering the very language of section 62 of the Copyright Act and section 134 of the Trade Marks Act, an additional forum has been provided by including a District Court within whose limits the plaintiff actually and voluntarily resides or carries on business or personally works for gain. The object of the provisions was to enable the plaintiff to institute a suit at a place where he or they resided or carried on business, not to enable them to drag defendant further away from such a place also as is being done in the instant cases. In our opinion, the expression notwithstanding anything contained in the Code of Civil Procedure does not oust the applicability of the provisions of section 20 of the Code of Civil Procedure and it is clear that additional remedy has been provided to the plaintiff so as to file a suit where he is residing or carrying on business etc., as the case may be. Section 20 of the Code of Civil Procedure enables a plaintiff to file a suit where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, but for other purposes, the principal place of business, as held in Watkins v. Scottish Imperial Insurance Co. (1889) 23 QBD 285. A company may have subordinate or branch offices in fifty different jurisdictions and it may be sued in any one of such jurisdictions in respect of a cause of action arising there, has been held in Peoples' Insurance Co. v. Benoy Bhushan [AIR 1943 Cal. 190]; Home Insurance Co. v. Jagatjit Sugar Mills Co. [AIR 1952 Punj. 142]; and Prag Oil Mils Depot v. Transport Corpn. of India [AIR 1978 Ori. 167]. 15. Accrual of cause of action is a sine qua non for a suit to be filed. Cause of action is a bundle of facts which is required to be proved to grant relief to the plaintiff. Cause of action not only refers to the infringement but also the material facts on which right is founded. Section 20 of the CPC recognises the territorial jurisdiction of the courts inter alia where the cause of action wholly or in part arises. It has to be decided in each case whether cause of action wholly or in part arises at a particular place. As held by this Court in Rajasthan High Court Advocates Association v. Union of India Ors. [AIR 2001 SC 416]. Thus, a plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also arisen at that place, it has to institute a suit at the said place and not at other places. The provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act never intended to operate in the field where the plaintiff is having its principal place of business at a particular place and the cause of action has also arisen at that place so as to enable it to file a suit at a distant place where its subordinate office is situated though at such place no cause of action has arisen. Such interpretation would cause great harm and would be juxtaposed to the very legislative intendment of the provisions so enacted. 18. In our opinion, in a case where cause of action has arisen at a place where the plaintiff is residing or where there are more than one such persons, any of them actually or voluntarily resides or carries on business or personally works for gain would oust the jurisdiction of other place where the cause of action has not arisen though at such a place, by virtue of having subordinate office, the plaintiff instituting a suit or other proceedings might be carrying on business or personally works for gain. 19. At the same time, the provisions of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot go to far flung places than that of residence or where he carries on business or works for gain in order to deprive defendant a remedy and harass him by dragging to distant place. It is settled proposition of law that the interpretation of the provisions has to be such which prevents mischief. The said principle was explained in Heydon's case [76 ER 637]. According to the mischief rule, four points are required to be taken into consideration. While interpreting a statute, the problem or mischief that the statute was designed to remedy should first be identified and then a construction that suppresses the problem and advances the remedy should be adopted. The Heydon's mischief rule has been referred to in Interpretation of Statutes by Justice G.P. Singh, 12th Edn., at pp. 124-125 thus : (b) Rule in Heydon's case; purposive construction: mischief rule When the material words are capable of bearing two or more constructions the most firmly established rule for construction of such words of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) is the rule laid down in Heydon's case (76 ER 637) which has now at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the plaintiff to sue at a place where he ordinarily resides or carries on business or personally works for gain, was sought to be removed. Hence, the remedy was provided incorporating the provisions of section 62 of the Copyright Act. The provisions enabled the plaintiff or any of them to file a suit at the aforesaid places. But if they were residing or carrying on business or personally worked for gain already at such place, where cause of action has arisen, wholly or in part, the said provisions have not provided additional remedy to them to file a suit at a different place. The said provisions never intended to operate in that field. The operation of the provisions was limited and their objective was clearly to enable the plaintiff to file a suit at the place where he is ordinarily residing or carrying on business etc., as enumerated above, not to go away from such places. The Legislature has never intended that the plaintiff should not institute the suit where he ordinarily resides or at its Head Office or registered office or where he otherwise carries on business or personally works for gain where the cause of action too has arisen and should drag the defendant to a subordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions to be abused by the plaintiff by instituting suit in wholly unconnected jurisdiction. In the instant cases, as the principal place of business is at Mumbai the cause of action is also at Mumbai but still the place for suing has been chosen at Delhi. There may be a case where plaintiff is carrying on the business at Mumbai and cause of action has arisen in Mumbai. Plaintiff is having branch offices at Kanyakumari and also at Port Blair, if interpretation suggested by appellants is acceptable, mischief may be caused by such plaintiff to drag a defendant to Port Blair or Kanyakumari. The provisions cannot be interpreted in the said manner devoid of the object of the Act. 25. It was also submitted that Heydon's rule is not applicable where the words of the statute are clear. Reliance has been placed on M/s. Hiralal Rattanlal etc. etc. v. State of U.P. and Anr. etc. [1973 (1) SCC 216] in which it has been observed that when the provision is unambiguous and if from the provision legislative intent is clear, the court need not call into aid the other rule of construction of statutes such as that of `mischief'. However, we opine, when two interpretations are possible, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Acts Some types of remedy necessarily carry in their train corresponding drawbacks. One of the most frequent and inescapable of these is the loss of freedom that accompanies a regulatory measure. Such consequences are manifest, and must be treated as part of Parliament's intention. Strict construction Where a counter-mischief would arise if the remedy provided by the Act were construed widely, the court may avoid or at least reduce it by limiting the remedy. Example 318.2 Section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 (repealed) empowered the county court to make orders excluding a violent husband from the matrimonial home. No limit was specified for the duration of such exclusion orders. The courts held that, to reduce the counter-mischief of keeping a man out of his own home, exclusion orders should be made only for a brief period. In one case Viscount Dilhorne inferred that the purpose of the 1976 Act was `immediate relief not permanent resolution'. In another case Ormrod LJ said the 1976 Act was to be regarded as `a short-term remedy essentially'. It may appear to the court that one of the opposing constructions of the enac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of the Legislature', text and notes 57 to 69, pages 14 to 17) and as approved by the Supreme Court: The words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is found not so much in a strict grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained . [Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, AIR 1958 SC 353, p.356 ...] The courts have declined to be bound by the letter, when it frustrates the patent purposes of the statute . [Cabell v. Markham, 148 F 2d 737 92nd cir 1945), (Judge Learned Hand). In the words of SHAH, J.: It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature . [New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar, AIR 1963 SC 1207, p. 1213 ...]. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be presumed that the Legislature should have used the word in that interpretation which least offends our sense of justice . [Simms v. Registrar of Probates, (1900) AC 323, p. 335 CPC] If the grammatical construction leads to some absurdity or some repugnance or inconsistency with the rest of the instrument, it may be departed from so as to avoid that absurdity, and inconsistency. [Grey v. Pearson, (1857) 6 HLC 61, p. 106]. Similarly, a construction giving rise to anomalies should be avoided. [Veluswami Thevar v. G.Raja Nainar, AIR 1959 SC 422, pp. 427, 428]. As approved by VENKATARAMA AIYAR, J., Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. [Tirath Singh v. Bachittar Singh, AIR 1955 SC 830]. ' xxxxx Consideration of hardship, injustice or absurdity as avoiding a particular construction is a rule which must be applied with great care. The argument ab inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Boulder Proprietary Gold Mines Ltd., (1948) 1 All ER 21]. He proceeded to add: There is one rule, I think which is clear that, although the absurdity or the non-absurdity of one conclusion as compared with another may be and very often is, of assistance to the court in choosing between two possible meanings of ambiguous words, it is a doctrine which must be applied with great care, remembering that judges may be fallible in this question of an absurdity and in any event it must not be applied so as to result in twisting language into a meaning which it cannot bear. It is a doctrine which must not be used to re-write the language in a way different from that in which it was originally framed . [Grundt v. Great Boulder Proprietary Gold Mines Ltd. (supra)]. The alternative construction contended for must be such which does not put an undue strain on the words used; [Kanailal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907] and does not require recasting of the Act or any part of it. It must be possible to spell the meaning contended for out of the words actually used. [Shamrao V. Parulekar v. District Magistrate, Thana AIR 1952 SC 324]. No doubt in cases of ambiguity that construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imits of whose jurisdiction,-- (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises.] This Court while interpreting the provision held that the term `branch office' as used in the amended section 17(2)(b) has to be interpreted to mean only that branch office where the cause of action has arisen. Thus, the court departed from the plain and literal meaning of the words of section 17(2)(b) of the Consumer Protection Act in order to avoid absurdity. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a cause of action (even though the principal office of the corporation is not located there) so long as there is a subordinate office of the corporation situated at such place. The linking together of the place where the cause of action arises with the place where a subordinate office is located clearly shows that the intention of the legislature was that, in the case of a corporation, for the purposes of clause (a), the location of the subordinate office, within the local limits of which a cause of action arises, is to be the relevant place for the filing of a suit and not the principal place of business. If the intention was that the location of the sole or principal office as well as the location of the subordinate office (within the limits of which a cause of action arises) are to be deemed to be places where the corporation is deemed to be carrying on business, the disjunctive or will not be there. Instead, the second part of the Explanation would have read and, in respect of any cause of action arising at any place where it has a subordinate office, also at such place . 13. As far as we can see the interpretation which we have placed on this section does not create ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff has a choice of forum and cannot be compelled to go to the place of residence or business of the defendant and can file a suit at a place where the cause of action arises. If the defendant desires to be protected from being dragged into a litigation at some place merely because the cause of action arises there it can save itself from such a situation by an exclusion clause. The clear intendment of the Explanation, however, is that where the corporation has a subordinate office in the place where the cause of action arises it cannot be heard to say that it cannot be sued there because it does not carry on business at that place. Clauses (a) and (b) of Section 20 inter alia refer to a court within the local limits of whose jurisdiction the defendant inter alia carries on business . Clause (c) on the other hand refers to a court within the local limits of whose jurisdiction the cause of action wholly or in part arises. 10. On a plain reading of the Explanation to Section 20 CPC it is clear that the Explanation consists of two parts: (i) before the word or appearing between the words office in India and the words in respect of , and (ii) the other thereafter. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of whose jurisdiction the person instituting the proceedings ordinarily resides, carries on business etc. 13. It is, therefore, clear that the object and reason for the introduction of sub-section (2) of Section 62 was not to restrict the owners of the copyright to exercise their rights but to remove any impediment from their doing so. Section 62(2) cannot be read as limiting the jurisdiction of the District Court only to cases where 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 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. This Court held therein that the Delhi court had jurisdiction since the plaintiff had averred that it has its registered office in Delhi and seize and desist notice was also received by the appellants at Delhi. The decision in Exphar SA (supra) does not oust the applicability of the provisions of section 20 of the Code of Civil Procedure as this Court has laid down that section 62 has prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al forum was provided so as to enable the author to file a suit who may not otherwise be in a position to file a suit at different places where his copyright was violated. The Parliament while enacting the Trade and Merchandise Marks Act in the year 1958 was aware of the provisions of the 1957 Act. It still did not choose to make a similar provision 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode. The object and reasons for enactment of sub-section (2) of Section 62 would also appear from the report of the Committee, as has been noticed by this Court being a provision which has been specially designed to confer an extra benefit upon the authors who were not in a position to instate copyright infringement proceeding before the courts. It is in the aforementioned context the law laid down by this Court in paragraph 13 of Dhodha House (supra) must be understood. xxxxx 34. What then would be meant by a composite suit? A composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Order 2 Rule 3 of the Code specifically states so and, thus, there is no reason as to why the same should be ignored. A composite suit within the provisions of the 1957 Act as considered in Dhodha House (supra), therefore, would mean the suit which is founded on infringement of a copyright and wherein the incidental power of the court is required to be invoked. A plaintiff may seek a remedy which can otherwise be granted by the court. It was that aspect of the matter which had not been considered in Dhodha House (supra) but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and carrying on business at Delhi. The plaintiff has branch office at Delhi and plaintiff's authorised partner was offering the products from its office at Delhi. The judgment was delivered considering the provisions of Order VII Rule 10, C.P.C. taking the plaint averments to be correct. (f) In Wipro Ltd. Anr. v. Oushadha Chandrika Ayurvedic India (P) Ltd. Ors. [2008 (37) PTC 269 Mad.], the High Court at Madras has observed that the provisions of section 20 CPC are not applicable as far as the High Court at Madras is concerned. Therefore, the scope of section 62 of the Copyright Act and section 134 of the Trade Marks Act, cannot be curtailed by reference to section 20 CPC or clause 12 of the Letters Patent. (g) In Hindustan Unilever Ltd. v. Ashique Chemicals Ors. [2011 (47) PTC 209 (Bom.)], the Bombay High Court has dealt with the territorial jurisdiction and held that section 134 of the Trade Marks Act conferred upon the plaintiff the benefit of bringing an action stipulated therein notwithstanding the provisions of the Code of Civil Procedure or any other law. (h) In the case of Ultra Tech Cement Ltd. Anr. v. Shree Balaji Cement Industries Ors. [2014 (58) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having expertise in the matter, as such it would be convenient to the parties to contest the suit at Delhi. Such aspects are irrelevant for deciding the territorial jurisdiction. It is not the convenience of the lawyers or their expertise which makes out the territorial jurisdiction. Thus, the submission is unhesitatingly rejected. 46. It was also submitted that the suit may be ordered to be transferred to Delhi. We cannot order transfer of suit in these proceedings. In case parties so desire, they are free to file appropriate application but the suit is required to be presented in the court of competent jurisdiction only thereafter the question of transfer would be germane. 47. In our opinion, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act have to be interpreted in the purposive manner. No doubt about it that a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain. He need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises. However, if the plaintiff is residing or carrying on business etc. at a place where cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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