TMI Blog2010 (9) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... of licensed products including: glassware, lipstick, vanity sets, nailtips, body mist, clothing items such as T-shirts, polo shirts, night-shirts and in particular clothing for children, beach towels, hats etc. According to the Appellant they are the proprietor of Archie Comic Publication Inc. and own the ARCHIE trademark with its variations like ARCHIE , ARCHIE'S , LITTLE ARCHIE , THE ARCHIES THE NEW ARCHIES , ARCHIE COMICS etc. It is claimed by the Appellant that since they are using the said trademark ARCHIE since 1942, by virtue of its long, continuous and extensive use consumers all over the world, including those in India associate the trade mark ARCHIE with that of the Appellant. 3. The Appellant had applied for registration of ARCHIE and Heads on 17th October, 1989 in Class 16 and it is claimed that they have been extensively using this mark in India since 1979. According to the Appellant they came to know that the Respondents have started using their trademark for the first time in June, 2004 when they came across an advertisement for the trademark ARCHIES and device , PURPLE ARCHIE and ARCHIES in Class 25, which was published in the trademark j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rejection of the plaint urging that the Court of Delhi had no jurisdiction, as neither the Appellant carries on his work or personally works for gain at Delhi nor the Respondents reside or carry on business nor any cause of action has arisen in Delhi. After filing its reply to IA No. 238/2008, the Appellant filed an application under Order 6 Rule 17 being IA No. 5271/2006 for amendment of the pleadings stating that after the filing of the suit, it has also come to know that the Respondents have got a distributor who is operating within the jurisdiction of the Delhi High Court and had been purchasing ARCHIES products from the Respondents/their predecessor. The application also states that the Appellant has also come to know that the Respondents had advertised their products under the trademark ARCHIES in newspapers including Mid-Day, Delhi Edition, and they are also operating their website, namely, www.purplearchies.com which can be accessed from anywhere in India including Delhi and are thus, infringing the trademark of the Appellant. 8. In response to the application of the Appellant under Order 6 Rule 17 Respondents filed their reply denying that on the date of filing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Section 20 of the CPC. To those observations we may add that it is only in the event of a conflict between the provisions of Section 20 of the CPC and those of Section 134 of the Trade Marks Act that the latter would prevail. The effort of the Court must be, so far as is possible, not to curtail the role that can be played by either of the provisions acting conjointly or simultaneously. This Court in Intas had predicated its decision on the opinion of the Supreme Court in Dhodha House v. S.K. Maingi (2006) 9 SCC 41 in which it has been enunciated that Section 62(2) of the Copyright Act provides an additional forum to enable the holder of a copyright to file a suit at the place of his residence, thereby insulating him from the tedium or vexatiousness of taking the fight to the doorstep of the violating Defendant. The Trade and Merchandise Marks Act, 1958 did not contain a provision akin to Section 134(2) of the Trade Marks Act, 1999 enabling the plaintiff to enjoy the convenience of filing a suit at the place where he resides or carries on business etc. The extant provisions are indeed salutary in purpose and effect, since otherwise the legal remedy available for a brea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um which is not convenient to either of the parties, as is demonstrated by the case in hand. Bill No. XV of 1955 sought to amend and consolidate the law relating to copyright . The Parliamentary Committee was of the opinion that many authors are deterred from 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. This is a manifestation, in reverse, of what we have assessed as a general principle of law, viz., that the intendment behind prescribing the place of suing is to ensure that litigation should be as best possible not a weapon of harassment. Since experience had exposed the reality that if a plaintiff in an action for infringement of copyright or trademark may not be able to enjoy the fruits thereof if he was compelled to file at the transgr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the CPC. The word notwithstanding in ordinary parlance means 'inspite of' or despite. (See Concise Oxford Dictionary as well as Black's Law Dictionary). This word does not indicate that the CPC has no role to play. In the factual matrix before us the word 'notwithstanding' connotes that in addition to Section 20 of the CPC, by virtue of Section 62(2) of the Copyright Act, the plaintiff is free to choose a forum convenient to it, that is, wherever it actually and voluntarily resides or carries on business or personally works for gain, provided the cause of action arises there. This is in contradistinction to that of the defendant as prescribed by Section 20 of the CPC. It is difficult for us to conceive of a situation where the ameliorative advantage bestowed on the plaintiff by virtue of Section 62 of the Trade Marks Act or Section 134 of the Trademarks Act could be frustrated if this interpretation is given effect to. Let us assume that the cause of action has arisen in Kanyakumari. It is axiomatic that in the case of a violation of a trademark or copyright the Defendant would have some presence, that is, actual and voluntary residence, or carrying on of bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y what is called for even where the Court is to interpret other statutes such as the Copyright Act and the Trade Marks Act. 11. Thus, the facts of the present case are required to be tested in light of the settled law that the plaintiff can file a suit in terms of Section 134 of the Trademarks Act, 1999 at the place where he carries on business or personally works for gain . The Appellant in this case does not have any registered office in India much less in Delhi. The sole averment for carrying on business in Delhi is that one bookshop, that is, Variety Book Stores has been importing books, comics etc. from the Appellant and retailing at their store in Delhi and in this regard one invoice of the year 1979 is filed. Even by way of application for amendment under Order 6 Rule 17 CPC what is sought to be introduced is, The plaintiff is also carrying on its business at least since 1979 and the plaintiff has its sole distributor i.e. Variety Book Depot, Connaught Circus, New Delhi who is exclusively selling Archie Comics on behalf of the plaintiff within the territory of this Hon'ble Court and who has also been importing books from the plaintiff in a substantial way. It is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be said to carry on business in Bombay unless his agent made sales there on his behalf. A Calcutta firm that employs an agent at Amritsar who has no power to receive money or to enter into contracts, but only collects orders which are forwarded to and dealt with in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in Oil and Natural Gas Commission v. Utpal Kumar Basu and Ors. (1994) 4 SCC 711: Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinized at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action... . Thus, this contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as taken by another Ld. Single Judge of this Court in Hari Bhagwan Sharma and Ors. v. Badri Bhagat Jhandewalan Temple Society and Ors. 27 (1985) DLT 68. 15. We have given our anxious consideration to the two views expressed. It is well settled that for any adjudicatory authority to act, Jurisdictional Fact is a sine qua non for the same. A jurisdictional fact is one on the existence or non-existence of which depends the vesting of jurisdiction in a Court, Tribunal or an authority. In Black's Legal Dictionary it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case. 16. In this regard it would be relevant to note Section 134 of the Trademarks Act, 1999 which postulates that a suit can be instituted by the plaintiff within the local limits of whose jurisdiction at the time of institution of suit or other proceedings, the person instituting the suit or proceedings actually and voluntarily resides or carries on business or personally works for gain. Thus, the section clearly envisages that at the time of institution of the suit, the Appellant should have been carrying on business at Delhi, which unfortunately is not the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Procedure Amendment Act, 1976, Section 21 was renumbered as 21(1) and Sub-sections (2) and (3) were brought in, by virtue thereof an objection as to the competence of the Court with reference to the pecuniary limits of its jurisdiction were to be taken in the Court of first instance at the earliest possible opportunity. This was in line with the interpretation of the Hon'ble Supreme Court in Kiran Singh v. Chaman Paswan and Ors. AIR 1954 SC 340 even prior to the amendment, in view of Section 11 of the Suits Valuation Act. It was held: 7. With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, C.P.C. and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. The application under Order 6 Rule 17, CPC was allowed to cure defective pleadings so as to constitute a cause of action as the documents filed alongwith the plaint thereby forming the part of plaint showed jurisdictional facts. 22. Applying the principle of doctrine of relation back as laid down by the Hon'ble Supreme Court in Siddhalingamma and Anr. v. Mamta Shenoy 2001 (8) SCC 561 and Sampat Kumar v. Ayyakannu and Anr. AIR 2002 SCC 3369 that once an amendment is allowed unless it is expressly excluded by the Court, a Plaint or petition would be deemed to have been filed as it appears after the amendment, in our view if a plaint is completely bereft of any pleading which are the 'jurisdictional facts', the civil court in that case will not have the jurisdiction to proceed in that suit or even to allow an application seeking amendment under Order 6 Rule 12 CPC. Thus a completely unconscionable plaint which does not reveal any fact which confers a jurisdiction on a civil court to act may not vest the jurisdiction with the Civil Court to even allow an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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