TMI Blog2016 (1) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... e court where the suit is filed finds that the suit can be well tried more conveniently at other place which also has the territorial jurisdiction, then in such cases the appropriate High Court is entitled to transfer the suit to other convenient place which otherwise has jurisdiction and where the suit would be more appropriately tried i.e the principle of forum conveniens so far as the parties to the suit are concerned. Plaints returned. - CS(COMM) Nos.53/2015 & 54/2015, CS(COMM) No. 53/2015 and I.A. No.25929/2015 (stay), CS(COMM) No. 54/2015 and I.A. No.25931/2015 (stay) - - - Dated:- 21-12-2015 - MR. VALMIKI J.MEHTA, J. For The Plaintiff : Ms. Swathi Sukumar, Advocate with Ms. Anu Paascha, Advocate and Mr. Sanyukta Banerjie, Advocate. VALMIKI J. MEHTA, J (ORAL) 1(i) These suits are filed by the plaintiff against the defendants seeking permanent injunction restraining the infringement of trade mark, passing off and damages etc. (ii) In both the suits i.e CS(COMM) Nos.53/2015 and 54/2015, the plaintiff is a company registered under the Companies Act, 1956 and it has no office in Delhi be it a principal office or a head office or a registered office or even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carrying on business by the plaintiff but because the defendants are carrying on their businesses at Delhi under the impugned trade marks BOOKMYOFFER.COM and BOOKMERASHOW.COM in CS(COMM) Nos.53/2015 and 54/2015 respectively, and as a result of which impugned activities of the defendants would be at Delhi, and hence this Court thus would have territorial jurisdiction with reference to the cause of action of the activities of the defendants and not because of the plaintiff s carrying on business in Delhi as per Section 134 of the Trade Marks Act, 1999. Learned counsel for the plaintiff however states that plaintiff does not seek to so amend the suit plaint and this Court can proceed ahead to decide the issue of territorial jurisdiction and places reliance upon the judgment passed by a Division Bench of this Court in the case of World Wrestling Entertainment Vs. Reshma Collection 2014 SCC OnLine Del 2031 and paras 17, 18 and 24 (wrongly numbered as 21 in the judgment) thereof, and which paras read as under:- 17. The main issue before us is one of considering as to whether on the basis of the averments made in the plaint, the appellant/ plaintiff carries on business in De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Mumbai. What we are examining is whether the third condition specified in Dhodha House (supra) is satisfied or not. In other words, if the contracts and/ or transactions entered into between the appellant/ plaintiff on the one hand and its customers are being concluded in Delhi, can it not be said that the essential part of the business of the appellant/ plaintiff, insofar as its transactions with customers in Delhi are concerned, takes place in Delhi? The offers are made by customers at Delhi. The offers are subject to confirmation/ acceptance of the appellant/ plaintiff through its website. The money would emanate or be paid from Delhi. Can it not then be considered that the appellant/ plaintiff is, to a certain extent, carrying on business at Delhi? In our view, it would be so. Because of the advancements in technology and the rapid growth of new models of conducting business over the internet, it is possible for an entity to have a virtual presence in a place which is located at a distance from the place where it has a physical presence. The availability of transactions through the website at a particular place is virtually the same thing as a seller having shops in that plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed from those other cases where the plaintiff is a corporeal person viz a company. In case plaintiff is a company, in such a case a plaintiff/company can only carry on business only if its principal or registered or head office or a branch office is also and necessarily situated at the place where cause of action arises inasmuch as because of Section 20(a) CPC with its Explanation carrying on business is inextricably linked to the plaintiff/company also having an office where it carries on business. In law unless a company has an office at a place, it cannot be said to be carrying on business at that particular place. This peculiarity takes place because of the Explanation to Section 20 CPC and this Explanation alongwith Section 20(a) CPC was directly the subject matter of the decision of the Supreme Court with respect to a company/corporation carrying on business in the case of Patel Roadways Limited, Bombay Vs. Prasad Trading Company (1991) 4 SCC 270. The relevant paras of this judgment are paras 9 and 12 and these paras read as under:- 9. Clauses (a) and (b) of Section 20 inter alia refer to a court within the local limits of whose jurisdiction the defendant inter alia c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature was, as is said on their behalf, that a suit against a corporation could be instituted either at the place of its sole or principal office (whether 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 been instituted at the place where the cause of action arose under Clause (c) (irrespective of whether the corporation had a subordinate office in such place or not). This was therefore, not the purpose of the explanation. The explanation is really an explanation to Clause (a). It is in the nature of a clarification on the scope of Clause (a) viz. as to where the corporation can be said to carry on business. This, it is clarified, will be the place where the principal office is situated (whether or not any business actually is carried on there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been considered by the Supreme Court in the recent judgment in the case of Indian Performing Rights Society Limited Vs. Sanjay Dalia and Another (2015) 10 SCC 161 and in which judgment the Supreme Court in the relevant paras, wherever it uses the expression carries on business has used this expression with a slash(/) i.e the expression slash is used so as to distinguish those cases where carrying on business so far as a corporation is concerned, is only along with existence of a head office or a corporate office or a principal office or a branch office as compared to the different position which would prevail when plaintiff is a natural person. The relevant paras of this judgment of the Supreme Court in the case of Sanjay Dalia and Another (supra) are paras 14,15, 16, 18 and 19 and these paras read as under:- 14. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory corporation but companies registered under the Companies Act, as held by this Court in Patel Roadways Ltd. v. Prasad Trading Co. and New Moga Transport Co. v. United India Insurance Co. Ltd. The domicile of the company is fixed by the situation of its principal place of business as held in Jones v. Scottish Accident Insurance Co. Ltd. In the case of companies registered under the Companies Act, the controlling power is, as a fact, generally exercised at the registered office, and that office is therefore not only for the purposes of the Act, but for other purposes, the principal place of business, as held in Watkins v. Scottish Imperial Insurance Co. 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. Ltd. v. Benoy Bhushan Bhowmik, Home Insurance Co. Ltd. v. Jagatjit Sugar Mills Co. Ltd. and Prag Oil Mils Depot v. Transport Corpn. of India. xxxxx 18. On a due and anxious consideration of the provisions contained in Section 20 of the Code of Civil Procedure, Section 62 of the Copyright Act and Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (emphasis added) 7(ii) It is pertinent to note that the meaning ascribed to the expression carrying on business in Section 20(a) CPC as held in the case of Patel Roadways Limited, Bombay (supra), so far as a defendant is concerned, has been held to be applicable even to a plaintiff as held in the judgment in the case of Sanjay Dalia and Another (supra). 8. A conjoint reading of the ratios of the judgments of the Supreme Court in the cases of Patel Roadways Limited, Bombay (supra) and Sanjay Dalia and Another (supra) shows that wherever a plaintiff or a defendant is a corporation, carrying on business by such a corporation or a company necessarily has to be taken alongwith existence of a branch office or a principal o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
