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2015 (7) TMI 277 - SUPREME COURT

2015 (7) TMI 277 - SUPREME COURT - 2015 AIR 3479, 2015 (8) SCR 210, 2015 (10) SCC 161, 2015 (7) SCALE 574 - Jurisdiction of High Court - Infringement of the Trademark / Copyright - Interpretation of section 62 of the Copyright Act, 1957 - Interpretation of section 134(2) of the Trade Marks Act, 1999 - Place of initiation of suit Delhi vs Mumbai - Head office situated at Mumbai while branch office at Delhi - Held that:- In our opinion, the provisions of section 62 of the Copyright Act and section .....

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t that place. - In order passed by the delhi high court [2008 (11) TMI 658 - DELHI HIGH COURT] , it was held that 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 .....

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r 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 arising for consideration is as to the interpretation of section 62 of the Copyright Act, 1957 and section 134(2) of the Trade Marks Act, 1999 with regard to the place where a suit can be instituted by the plaintiff. 3. The pla .....

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Office of the plaintiff is situated at Delhi and the plaintiff is carrying on the business at Delhi. However, it is not disputed that the plaintiff's Head Office is situated at Mumbai. The objection was raised by the defendant with regard to the territorial jurisdiction of the court at Delhi. The single Bench and the Division Bench of the High Court have upheld the objection and held that the suit should have been filed in the facts of the case, in the court at Mumbai. Hence, the impugned o .....

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ion 134 of the Trade Marks Act. The plaintiff filed an application seeking an amendment in the plaint under Order 6 Rule 17 of the Code of Civil Procedure so as to indicate how the court at Delhi would have the jurisdiction. The magazine is sold and circulated to the subscribers at Delhi. The application seeking amendment has also been dismissed by the High Court as even if allowed, amended pleadings would not confer jurisdiction upon the court. Merely situation of branch office is not enough as .....

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bility 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 carrie .....

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f this Court in Dhodha House v. S.K. Maingi [2006 (9) SCC 41], Dabur India Ltd. v. K.R. Industries [2008 (10) SCC 595] and various other decisions of the High Court of Delhi viz., Smithkline Beecham & Anr. v. Sunil Singhi & Anr. [2000 (1) PTC 321 (Del.)], Caterpillar Inc. v. Kailash Nichani & Ors. [2002 (24) PTC 405 (Del.)], Intas Pharmaceuticals Ltd. v. Allergan Inc. [132 (2006) Delhi Law Times 641] to contend that under the aforesaid provisions accrual of cause of action wholly or .....

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nambiguous. There is no challenge to the vires of section 62 of the Copyright Act. Thus, the court cannot invoke the doctrine of reading down the provisions. Section 62 of the Copyright Act is a special legislation and confers a special right on the plaintiff where it carries on business or resides. Reading the Explanation to section 20 of the Code of Civil Procedure into section 62 will do violence to the Copyright Act. The requirement of cause of action or Explanation as to the corporation of .....

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e should be referred to a larger Bench of this Court. Non-obstante clause cannot be diluted. 8. On the other hand, on behalf of the respondents, it was submitted that abuse of provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act cannot be permitted at the 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. R .....

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erpreting 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 reads thus : "Se .....

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me of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. [Explanation]. : A corporation shall be deemed to carry on business at its sole or principal office in India or, in respe .....

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distance from the place of their ordinary residence. Such impediments should be removed and the proceedings may be instituted in the local court where the person instituting the proceedings ordinarily resides, carries on business etc. Clause 61 of the Report of the said Committee is extracted below : "Clause 61 (Original clause 65). -Sub-clause (2) of the original clause 65 has been omitted and replaced by a new sub-clause. The Committee feels that the provisions of the original sub-clause .....

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ides 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 inf .....

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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." Section 134 of the Trade Marks Act is also extracted below : "134. Suit for infringement, etc., to be instituted before District Court. - (1) No suit- (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the .....

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e 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 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. Explanation.-For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user." 11. Following portion of the Parliamentary .....

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run all over the country facing the infringer, the right may be given to the injured party-the author-to sue the main in the place where the author resides or where the first copy was published. Dr. Raghubir Sinh: So you agree to that? Shri P. Trikamdas: Yes, and I am obliged to you for asking me that question. Dr. Raghubir Sinh: Does Mr. Masani also approve of it? Shri Masani : Yes. Shri P. Trikamdas: It is desirable, also because it may act as a deterrent on the infringer when he knows that he .....

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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 carryin .....

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P.C. has been added to the effect that Corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has subordinate office at such place. Thus, corporation' can be sued at a place having its sole or principal office and where cause of action wholly or in part, arises at a place where it has also a subordinate office at such place. 13. Learned author Mulla in the Code of Civil Procedure, 18 th Edn. .....

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nate office of the corporation is situated is reflective of the intention of the Legislature and such a place has to be the place of the filing of the suit and not the principal place of business. Ordinarily the suit has to be filed at the place where there is principal place of business of the corporation. 14. Corporation' in the Explanation would mean not only the statutory corporation but companies registered under the Companies Act, as held by this Court in Patel Roadways Ltd., Bombay v. .....

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ly for the purposes of 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 Pr .....

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e 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 plaintiff can also file a suit where the cause of action wholly or in part arises. 16. On a due and anxious consideration of the provisions contained in section 20 of the CPC, section 62 of the Copyright Act and section 134 of the Trade Marks Act, and the object with which the lat .....

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g, carries on business or personally works for gain. However, this right to institute suit at such a place has to be read subject to certain restrictions, such as in case plaintiff is residing or carrying on business at a particular place/having its head office and at such place cause of action has also arisen wholly or in part, plaintiff cannot ignore such a place under the guise that he is carrying on business at other far flung places also. The very intendment of the insertion of provision in .....

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ks for gain. The object is to ensure that the plaintiff is not deterred from instituting infringement proceedings "because the court in which proceedings are to be instituted is at a considerable distance from the place of their ordinary residence". The impediment created to the plaintiff by section 20 C.P.C. of going to a place where it was not having ordinary residence or principal place of business was sought to be removed by virtue of the aforesaid provisions of the Copyright Act a .....

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nable 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 personall .....

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lace where the plaintiff or any of them ordinarily resides, carries on business or personally works for gain. We agree to the aforesaid extent the impediment imposed under section 20 of the CPC to a plaintiff to institute a suit in a court where the defendant resides or carries on business or where the cause of action wholly or in part arises, has been removed. But the right is subject to the rider in case plaintiff resides or has its principal place of business/carries on business or personally .....

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resides or carries on business in the local limits of the court where he has filed the suit but, in our view, at the same time, as the provision providing for an additional forum, cannot be interpreted in the manner that it has authorised the plaintiff to institute a suit at a different place other than the place where he is ordinarily residing or having principal office and incidentally where the cause of action wholly or in part has also arisen. The impugned judgments, in our considered view, .....

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in respect of "passing off" continues to be governed by section 20 of CPC. 22. If the interpretation suggested by the appellant is accepted, several mischiefs may result, intention is that the plaintiff should not 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 .....

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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 attained the status of a classic [Kanailal Sur v. Paramnidhi Sadhukhan .....

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suppress the mischief and advance the remedy". The rule was explained in the Bengal Immunity Co. v. State of Bihar [AIR 1955 SC 661] by S.R. DAS, CJI as follows: "It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case (supra) was decided that for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and consid .....

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and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. [Bengal Immunity Co. v. State of Bihar (supra)]." 23. Considering the first aspect of aforesaid principle, the common law which was existing before the provisions of law were passed was section 20 of the CPC. It did not provide for the plaintiff to institute a suit except in accordance with the provisions contained in section 20. The defect in e .....

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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 lim .....

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t to a subordinate office or other place of business which is at a far distant place under the guise of the fact that the plaintiff/corporation is carrying on business through branch or otherwise at such other place also. If such an interpretation is permitted, as rightly submitted on behalf of the respondents, the abuse of the provision will take place. Corporations and big conglomerates etc. might be having several subordinate offices throughout the country. Interpretation otherwise would perm .....

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n on the Delhi court in the aforesaid circumstances to entertain such suits. The Delhi court would have no territorial jurisdiction to entertain it. 24. The avoidance of counter mischief to the defendant is also necessary while giving the remedy to the plaintiff under the provisions in question. It was never visualised by the law makers that both the parties would be made to travel to a distant place in spite of the fact that the plaintiff has a remedy of suing at the place where the cause of ac .....

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works for gain. Discussion was to provide remedy to plaintiff at convenient place; he is not to travel away. Debate was not to enable plaintiff to take defendant to farther place, leaving behind his place of residence/business etc. The right to remedy given is not unbriddled and is subject to the prevention of abuse of the aforesaid provisions, as discussed above. Parliament never intended that the subject provisions to be abused by the plaintiff by instituting suit in wholly unconnected jurisdi .....

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akumari. 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 constru .....

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. Collector of Customs, Bombay [2002 (4) SCC 297] in which it has been observed that wherever the language is clear, the intention of the Legislature is to be gathered from the language used. While doing so, what has been said as also what has not been said, has to be noted. There is no dispute with the aforesaid proposition. However, the object of the Act and the intention of the Legislature is clear which is to the otherwise. 27. Bennion on Statutory Interpretation in section 318 in Part XXI h .....

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elfare. Bennion has discussed thus : "General presumption against absurdity' For the general presumption that an absurd' result is not intended, of which the present section depicts one aspect, see Code s.312. Mischief As to the mischief' to which an enactment is directed see Code s.289. Counter-mischief Clearly it would be absurd to suppose that Parliament intended to abolish one mischief only at the cost of establishing another which is just as bad, or even worse. Many legal r .....

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edy 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 Ma .....

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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 enactment, if adopted, would create a mischief of its own. It is not unusual for a construction contended for by one of the parties to have as one of its consequences the infliction of a serious injustice on the other party. The prospect of this would constitute a negative factor in weighing the applicability of the construction in question. Th .....

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ppellants on the discussions made by Bennion on avoiding disproportionate counter-mischief at page 1006 thus : "the Court seeks to avoid a construction that cures the mischief the enactment was designed to remedy only at the cost of setting up a disproportionate counter-mischief since this is unlikely to have been intended by Parliament. Sometimes there are overriding reasons for applying such a construction, for example, where the Parliament really intended it or a literal meaning is too s .....

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tion of justice. 30. Justice G.P. Singh in Principles of Statutory Interpretation', 12th Edition, has observed that regard be had to the subject and object of the Act. The court's effort is to harmonise the words of the statute with the subject of enactment and the object the Legislature has in view. When two interpretations are feasible, the court will prefer the one which advances the remedy and suppresses the mischief as envisioned. The relevant portion is extracted below : "As s .....

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he 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 sho .....

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uld adopt an object oriented approach keeping in mind the principle that legislative futility is to be ruled out so long as interpretative possibility permits. (Busching Schmitz Private Ltd. v. P.T. Menghani, AIR 1977 SC 1569, pp. 1575, 1576...]. The object oriented approach, however, cannot be carried to the extent of doing violence to the plain language used by rewriting the section or substituting words in place of the actual words used by the Legislature. [CIT v. Budhraja and Company, AIR 19 .....

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y. [U.P. Bhoodan Yagna Samiti v. Braj Kishore, AIR 1988 SC 2239]." 31. In Busching Schmitz Private Ltd. v. P.T. Menghani [1977 (2) SCC 835], it has been observed that purposive interpretation may be made having regard to the object of the provisions and to avoid any obvious lacuna. 32. The learned author Justice G.P. Singh in Interpretation of Statutes, 12th Edn. has also observed that it is the court's duty to avoid hardship, inconvenience, injustice, absurdity and anomaly while select .....

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that which is just, reasonable and sensible rather than that which is none of those things" [Holmes v. Bradfield Rural District Council, (1949) 1 All ER 381, p. 384] as it 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 instrumen .....

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ity, 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 inconvenienti", said LORD MOULTON, "is one which requires to be used with great ca .....

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g the Act as a whole and viewing it in connection with existing state of the law at the time of the passing of the Act, we can satisfy ourselves that the words cannot have been used in the sense to which the argument points". [Vacher & Sons v. London Society of Compositors, (1913) AC 107]. According to BRETT, L.J., the inconvenience necessitating a departure from the ordinary sense of the words should not only be great but should also be what he calls an "absurd inconvenience" .....

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tion, Attestation although enacted for the public benefit, may work injustice in particular cases but that is hardly any reason to depart from the normal rule to relieve the supposed hardship or injustice in such cases. [Lucy v. Henleys Telegraph Works, (1969) 3 All ER 456]. "It is the duty of all courts of justice", said LORD CAMPBELL, "to take care for the general good of the community, that hard cases do not make bad law". [East India Company v. Odichurn Paul, 7 Moo PC 85] .....

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e 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 doc .....

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[Shamrao V. Parulekar v. District Magistrate, Thana AIR 1952 SC 324]. No doubt in cases of ambiguity that construction which better serves the ends of fairness and justice will be accepted, but otherwise it is for the Legislature in forming its policy to consider these elements. [IRC v. Mutual Investment Co. (1966) 3 All ER 265]. If no alternative construction is open, the court cannot ignore a statutory provision "to relieve what it considers a distress resulting from its operation; a sta .....

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and it is not competent for any court judicially to ascribe any part of the legal operation of the statute to inadvertence. [Kariapper v. Wijesinha, (1967) 3 All ER 485]. The Courts should as far as possible avoid a construction which results in anomalies. [N.T.Veluswami Thevar v. G.Raja Nainar, AIR 1959 SC 422]." 33. Bennion on Statutory Interpretation' has mentioned law to same effect under section 312 and has observed that there is a presumption that absurd result is not intended an .....

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uction rule held that it is a well-settled principle of law that common sense construction rule should be taken recourse in certain cases. 34. This Court in Sonic Surgical v. National Insurance Co. Ltd. [2010 (1) SCC 135] has also laid down law to the same effect and has discussed the term branch office' used in section 17(2) of the Consumer Protection Act, 1986 in the context of cause of action. Section 17(2) of the said Act reads thus : "17(2) A complaint shall be instituted in a Stat .....

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ersonally 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 .....

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ing other permissible construction. 35. Reliance has been placed by the appellants on the decision in Union of India & Anr. v. Deoki Nandan Aggarwal [1992 Supp. (1) SCC 323] so as to contend that the court cannot usurp the legislative intention and cannot supply omissions to a statute. There is no dispute with the aforesaid proposition. However, we are simply interpreting the provisions considering the object of the Act. 36. Respondents have placed reliance on Patel Roadways Ltd., Bombay v. .....

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er or not the corporation carries on business at that place) or at any other place where the cause of action arises, the provisions of clauses (a), (b) and (c) together with the first part of the Explanation would have completely achieved the purpose. Indeed the effect would have been wider. The suit could have been instituted at the place of the principal office because of the situation of such office (whether or not any actual business was carried on there). Alternatively, a suit could have be .....

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or not any business actually is carried on there) or the place where a business is carried on giving rise to 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, fo .....

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ive "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 any practical or undue difficulties or disadvantage either to the plaintiff or a defendant corporation. It is true that, normally, under clauses (a) to (c), the plaintiff has a c .....

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ate 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. It would be a great hardship if, in spite of the corporation having a subordinate office at the place where the cause of action arises (with which in all probability the plaintiff has had dealings), such plaintiff is to be compelled to travel to the place where the corporation has its principal place. That place should be convenient .....

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if in spite of the corporation having a subordinate office at a place where the cause of action arises, such plaintiff is compelled to travel where the corporation has its principal office. That place should be convenient to the plaintiff and the corporation has an office at such place, will also be under no disadvantage. 37. Under clauses (a) to (c) of section 20 CPC, a plaintiff has a choice of forum and cannot be compelled to go to a place of business or residence of the defendant and can fi .....

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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 & .....

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corporation, which term would include even a company. The first part of the Explanation applies only to such corporation which has its sole or principal office at a particular place. In that event, the court within whose jurisdiction the sole or principal office of the company is situate will also have jurisdiction inasmuch as even if the defendant may not actually be carrying on business at that place, it will be deemed to carry on business at that place because of the fiction created by the Ex .....

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e but the court within whose jurisdiction it has a subordinate office which alone has the jurisdiction "in respect of any cause of action arising at any place where it has also a subordinate office". 38. In Exphar SA (supra), this Court had considered the provisions contained in section 62 of the Copyright Act and has observed that the word include' shows that the jurisdiction for the purpose of section 62 is wider than that of the court as prescribed under the Code of Civil Proced .....

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m instituting infringement proceedings because the court in which such proceedings are to be instituted is situated at a considerable distance from 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." .....

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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 sec .....

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e composite suit for infringement of the Copyright Act, and the Trade and Merchandise Marks Act, 1958. The Trade Marks Act, 1999 was also considered. This Court has laid down that composite suit may be maintainable under the Copyright Act and the Trade and Merchandise Act, 1958 but that may not be relevant for the purpose of determining the question of a forum where a suit can be instituted. In case the court is not having jurisdiction under one of the Acts, merely by combining the causes of act .....

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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 a .....

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onal 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 .....

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n 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. xxxxx 47. A corporation in view of Explanation appended to Section 20 of the Code would be deemed to be carrying on business inter alia at a place where it has a subordinate office. Only because, its goods are being sold at a place would thus evidently not mean that it carries a bu .....

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nterpretation made by us does not militate against the observations made by this Court in Dhodha House (supra), the precise question which is before us, was not involved in the aforesaid case. A decision is not to be construed like a statute nor by inferential process it can be assumed that this Court has decided the question also which is before this Court in the instant cases. 40. This Court in Paragon Rubber Industries & Ors. v. Pragathi Rubber Mills & Ors. [2014 (57) PTC 1(SC)] held .....

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tion 62 of the Copyright Act. This Court answered the question in the negative, dismissed the appeal and held that Order 2 Rules 2 and 3 of the CPC can be exercised only in the event when the court has otherwise jurisdiction in respect of the cause of action wherefor the action has been brought. This Court has observed with respect to section 62 of the Copyright Act thus : "32. There cannot be any doubt whatsoever that the Parliament having inserted sub-section (2) in Section 62 of the 1957 .....

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n 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 th .....

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lity of a composite suit observed that a composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction territorial or otherwise. The decision in Dabur India (supra) is of no help to the cause espoused by the appellants. 42. Now, we advert to various decisions of High Courts: (a) The decision of the Delhi High Court in Smithkline Beecham (supra) has been relied upon. As the registered office was situated in Delhi, it was held that the plaintiffs were entit .....

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n 20 of the CPC and section 134 of the Trade Marks Act. The High Court has observed in para 17 of the report that the court has jurisdiction by virtue of the provisions contained in section 20(c) of the CPC as the defendant is selling the offending drug in Delhi. (d) In Ford Motor Co. & Anr. v. C.R. Borman & Anr. [2008 (38) PTC 76 (Del.)], Delhi High Court considered that the plaintiff carried on the business in commercial quantities in Delhi and have authorised agents also. The pleading .....

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f he carries on business in the territorial jurisdiction of Delhi. The High Court held that in the plaint, jurisdiction was invoked on the ground that the defendants are voluntarily residing 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 .....

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C 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) PTC 1 (Bom.)], the High Court held that it has the jurisdiction as the plaintiff carries on busines .....

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aforesaid decisions contrary to our decision cannot hold the field. Interpretation of provisions cannot be so wide so as to open it to be misused, it has to be subject to object of the Act as explained above. 43. Coming to submission that vires of Section 62 has not been questioned. There is no doubt about it that the challenge to the vires of section 62 has not been made. However, the question is that of interpretation and not that of vires of the provisions which has been considered by us. The .....

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ng time as such there should not be any interference. Firstly, the judgments are of recent origin. Even otherwise, we have considered each and every decision threadbare which has been referred to us. It cannot be said that the precise question involved in the cases before us was involved in the aforesaid decisions or came up for consideration. In Dhodha House (supra) also, the question posed for consideration was different and the observations made therein are not supporting the cause raised on .....

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