TMI Blog2006 (10) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... ICE, CITILIFE, CITITREASURY. During the sunrise period (January 1,2005 to January 21, 2005), the Country Code Top Level Domain (ccTLD)) .in were made available for registered proprietors of trademarks only, and later, on February 16, 2005 for the general public on a first to apply basis. The plaintiffs during this period obtained registration of the domain names citicorp.in and citibank.in as they had registration for these trademarks in India. For the remaining trade names, the plaintiff No. 1 applied for registration of domain names citi.in , citifinancial.in and citigroup.in with one of the accredited Registrars, namely, Net4India, appointed by the National Internet Exchange of India (NIXI) as early as January 28, 2005. However, the plaintiffs were shocked to learn that the defendants had applied for and were granted the domain name citi.in , though the defendants had not launched any website for the said domain name. The plaintiffs accordingly instituted the above suit. 3. Defendants have filed the present application for rejection of the above plaint in view of the subsequent development relating to establishment of. In Domain Name Disputes Resolution Policy (he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first submission of counsel for the plaintiffs, counsel for the defendants submitted that the defendants had filed the application under Order VII Rule 11 of the Code of Civil Procedure being I.A. No. 4288/2006 praying for rejection of the plaint on gathering information that the INDR Policy had been framed on 28th June, 2005, but since the said application had been filed without invoking the provisions of Section 5 of the Arbitration Conciliation Act, 1996 as also Section 9 of the Civil Procedure Code, the same was withdrawn with liberty to file an appropriate application in terms of the new Policy. Hence the present application has been filed under Section 151 of the Code of Civil Procedure. 6. Counsel for the plaintiffs, on the other hand, emphasized that the earlier application seeking rejection of the plaint in view of the formulation of the aforesaid Policy having been rejected, the present application deserves to be thrown out at the very threshold. 7. A perusal of order dated 19th April, 2006 shows that learned Counsel for the defendants, after some arguments, had sought permission to withdraw the application with liberty to file an appropriate application in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded from exercising its jurisdiction by Section 226 of the Government of India Act, 1935 and Section 67 of the Indian Income Tax Act. When the case reached the Judicial Committee, the case was considered under Section 67, but not under Section 226. To discover the force of the prohibition under Section 67 of the Act, the Judicial Committee applied the following tests: a) Does the Act contain machinery by which the assessed can raise the question of the vires of the provision before the special authorities? b) This test was not conclusive but one to be considered. c) If there is no such machinery and yet the civil courts were barred, the vires of Section 67 itself might come in for consideration. The Judicial Committee eventually came to the conclusion that the Income Tax Act gave the assessed an opportunity to raise the question under the said Act. The provision for a case stated for the advisory opinion of the High Court was available and even otherwise, the High Court could be directly approached. The decision of the High Court was also subject to further appeal and thus there was suitable and adequate machinery under the Income Tax Act to question the assessment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and it further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil court s are prescribed by the said statute or not. 16. Referring to the decisions of the Apex Court cited by counsel for the defendants, in Paidi Peda Appanna (supra) the observations of Hon'ble Chief Justice Subba Rao, which were relied upon by counsel for defendants appear at of the Report as under: The following principles emerge from a consideration of the aforesaid decisions: (1) when a statute confers a power on any person for public purposes from which an individual may receive an injury, if the mode of redressing the injury is pointed out by the statute, the jurisdiction of the ordinary Courts is ousted and (2) where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then except so far as is otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. Both the principles are applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of appeal under Section 54. Since this is a special procedure provided in the Act, by necessary implication, the Civil Court under Section 9 of the Civil Procedure Code 1908 has been prohibited to take cognizance of the objections arising under the Act for determination of the compensation for the land acquired under the Act. 19. In Punjab State Electricity Board (supra), which was a case under the Indian Electricity Act, the Apex Court held that in view of the statutory circulars and instructions issued by the Electricity Board, cognizance of Civil Courts has been by necessary implication excluded and as a consequence, the Civil Courts shall not be justified in entertaining the suit, and giving the declaration sought for by the respondent (plaintiff in the suit), without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (Supply) Act and the Instructions issued by the Board in that behalf from time to time. 20. In the case of Manjeti Laxmi Kantha Rao (supra), the Apex Court at Page 692, Paragraph-5 of the Report held as follows: 5. The normal rule of law is that civil courts have jurisdiction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, can a suit of civil nature be said to be barred by a special statute, is no longer res integra. In Kamala Mills Ltd. v. State of Bombay a seven-Judge Bench of this Court laid down the principle thus: The question about the exclusion of the jurisdiction of civil courts either expressly or by necessary implication must be considered, in every case, in the light of the words used in the statutory provision on which the plea is rested, the scheme of the relevant provisions, their object and their purpose. (AIR p.1951, para 30) Whenever a plea is raised before a civil court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. Where the exclusion of the civil court's jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of remedies provided for by it may be relevant, it cannot, however, be decisive. But when exclusion is pleaded as a matter of necessary implication, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the civil court cannot be inferred. (3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity. 22. Adverting to the judgments relied upon by the plaintiffs, in the Dhulabhai case (supra) the Apex Court categorically held that alternative statute must provide for determination of all rights and liabilities of the parties for Section 9 of the CPC to be applicable. In Paragraph-35 at Page-7 of the Report, it was observed as follows: 35. ...The result of this inquiry into the diverse views expressed in this Court may be stated as follows: (1) Where the statute gives a finality to the orders of the special Tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions, the civil court's jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai case. 24. Next, reference was made by counsel for the plaintiffs to the decision of the Supreme Court in State of Tamil Nadu v. Ramalinga SamigaL Madam wherein Justice Tulzapurkar enunciated the law as follows: When a statute creates a special right or liability and provides for its determination, it should also lay down that all questions about the said right or liability shall be determined by the Tribunal or authority constituted by it. If there is no such provision it will be difficult to infer ouster of the Civil Court's jurisdiction to adjudicate all other questions pertaining to such right or liability...In the case of an application for a ryotwari patta by a ryot under Section 11 there is no express provision for any inquiry into the nature or character of the land before granting or refusing to grant such patta to the applicant but impliedly a decision on this aspect of the matter must be arrived at by the Settlement Officer before he passes his order on either granting or refusing to grant such patta. Such a deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the remedies provided therein deserve the epithets of adequate and sufficient , and whether remedies normally associated with actions in civil courts are prescribed by the provisions of said Policy. I, therefore, embark upon the exercise of placing each and every provision relating to the Policy under the judicial scanner. The Policy took off on being posted on the internet on 28th June, 2005. Paragraph 1 of the aforesaid Dispute Resolution Policy relates to definitions including the definitions of arbitrator, complainant and registrant, which are as follows: Arbitrator refers to the experts who have expertise on computer and/or laws, possess a high sense of professional ethics and are capable of rendering independent and unbiased decisions in domain name disputes. Complainant refers to the person who has complaint against the Registrant. Registrant is a holder of the in Internet domain name. Thus, as per the definition clause, the plaintiffs fall within the definition of 'Complainants' while the defendants fall within the definition of 'Registrants'. 27. Paragraph 2 of the policy sets out the purpose of formulation of the Policy, being to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either the Registry nor the Registrar shall be liable for any decisions rendered by an Arbitrator. 29. Paragraph 10 of the policy provides that the remedies available to a Complainant pursuant to any proceedings before an Arbitrator shall be limited to requiring the cancellation of the Registrant's domain name or the transfer of the Registrant's domain name registration to the Complainant and to such costs as may be deemed fit to be awarded by the Arbitrator. This paragraph being significant for the purposes of the present application, I propose to deal with the same at some length at a subsequent point of time. 30. Paragraph 11 provides for publication of all decisions under the Policy on the internet. Paragraph 12 lays down that a Registrant shall not transfer the domain name registration to another holder during the pendency of Arbitration proceedings or during the pendency of Court proceedings unless the party to whom the domain name registration is being transferred agrees, in writing, to be bound by the decision of the Court or Arbitrator. Paragraph 13 reserves to the Government of India the right to add, delete, amend or modify the policy at any time. 31. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including Section 5 of the said Act, cannot be invoked for the reason that arbitration, by its very nature, is an alternative dispute resolution mechanism involving consent of both the parties to refer their dispute to arbitration. Accordingly, Section 7 of the Act provides for the existence of an arbitration agreement between the parties. Then again, Section 8 of the Act lays down that this Court can only refer the parties to arbitration if there is an arbitration agreement, which term is defined under Section 7. Section 5, therefore, has no applicability to the present proceedings in view of the fact that this is not a matter in which there is an arbitration agreement between the parties. It is only after the complaint is filed in terms of the Policy and the Rules framed there under that the provisions of Section 7 of the Arbitration Agreement can be said to be satisfied, if at all. They (the plaintiffs) have not filed any complaint before the Tribunal and, as a matter of fact, had instituted the present suit much prior to the formulation of the Policy. 36. Amplifying upon the aforesaid contention, learned Counsel for the plaintiffs emphatically contended that the IN Domain N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a Dispute The Registrant shall not transfer a domain name registration to another holder: (i) In case an Arbitration proceeding is initiated pursuant to this policy, for a period of fifteen (15) working days ( working day means any day other than a Saturday, Sunday or public holiday) after such proceeding is concluded; or (ii) during a pending court proceeding or arbitration commenced regarding the domain name, unless the party to whom the domain name registration is being transferred agrees, in writing, to be bound by the decision of the court or arbitrator. The Registry reserves the right to cancel any transfer of a domain name registration to another holder that is made in violation of this paragraph. Rule 3(b)(viii) is as under: 3(b) The Complaint and the annexures attached to it shall be submitted in hard copy and as far as possible in electronic form also and shall incorporate the following: (i) ... (ii) ... (iii) ... (iv) ... (v) ... (vi) ... (vii) ... (viii) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to the domain name that is the subject of the Complaint. 40. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that your domain name registration should be cancelled or transferred, we will wait ten (10) business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel's decision before implementing that decision. We will then implement the decision unless we have received from you during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that you have commenced a lawsuit against the complainant in a Mutual Jurisdiction regarding your right to use your domain name. For purposes of this Policy, a Mutual Jurisdiction is one defined as such in the Rules of Procedure (and in which both parties are subject to court jurisdiction). If we receive such documentation within the ten (10) business day period we will not implement the Administrative Panel's decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that your lawsuit has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach the Civil Court. (iii) It is trite law that an alternative statute must provide for determination of all the rights and liabilities of the parties for Section 9 of the Code of Civil Procedure to be applicable. In the instant case, the whole scheme of the IN Domain Name Dispute Resolution Policy shows that the remedies available under the said Policy are of an extremely limited nature - limited to requiring the cancellation of the Registrant's domain name or the transfer of the Registrant's domain name registration to the Complainant (paragraph 12 of the Policy). Paragraph 2 of the Policy, which lays down the purpose of the policy, limits the same to resolution of a dispute between the Registrant and the Complainant arising out of the registration and use of the IN Internet Domain Name . The scope of the suit is far greater than the disputes that the INDR Tribunal can adjudicate upon. Substantive relief is claimed for infringement of trademark and passing off which includes infringing the use of CITI in any manner or form either as a domain name or as a trademark or trade name or on the website. Further, perusal of the written statement of defendant No. 2 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 4(k) of the UDNDR Policy would not prevent either the domain name owner/registrant or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution, either before proceeding under ICANN's policy or after such proceeding is concluded. The Supreme Court, however, noticed that there is no legislation in India which explicitly refers to dispute resolution in connection with domain names. The said lacuna has no doubt been filled by the INDRP, but as set out hereinbefore, the result by no means tantamounts to ouster of the jurisdiction of Civil Courts, more so, in cases where infringement of trade name/trademark and passing off are alleged and rendition of accounts and other reliefs such as are claimed in the present proceedings are prayed for. (vi) It is well settled that the provisions of the Arbitration Conciliation Act cannot be invoked unless there is a binding written agreement between the parties for arbitration. There is no such agreement in the instant case. The mere fact that the Registrants (Defendants herein) have registered themselves with the alternative dispute resolution forum cannot by any stretch of imagination ..... X X X X Extracts X X X X X X X X Extracts X X X X
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