TMI Blog2022 (10) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... verments made in the plaint and the documents filed by the plaintiff. In D. RAMACHANDRAN VERSUS R.V. JANAKIRAMAN ORS. [ 1999 (3) TMI 656 - SUPREME COURT] , the Supreme Court observed It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or a triable issue as such. The court cannot probe into the facts on the basis of the controversy raised in the counter. The appellant claims that the respondent is clandestinely selling its infringing goods within the territorial jurisdiction of the Court. The appellant also alleges that defendant has been advertising, soliciting and selling its goods within the jurisdiction of the Court through interactive websites. In addition, it is claimed that the defendant is carrying on business activity in Delhi by advertising its products in a trade magazine, which is circulated within the jurisdiction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round that the plaintiff has not exhausted the pre-institution remedy of mediation as contemplated under Section 12A(1) of the Commercial Courts Act, 2015. This Court is unable to accept that it is necessary for a court to read in any procedure in Section 12A of the Commercial Courts Act, 2015, which makes it mandatory for a plaintiff to file an application to seek leave of the court for filing a suit without exhausting the remedy of pre-institution mediation, irrespective of whether the plaintiff seeks urgent interim relief or not. In Patil Automation Private Limited and Ors. v. Rakheja Engineers Private Limited, the Supreme Court had considered the import of Section 12A of the Commercial Courts Act, 2015 in the context of the suits, which did not contemplate any urgent interim relief - It is apparent from the above that the Supreme Court was also of the view that compulsory mediation is foisted only on a plaintiff who does not contemplate urgent interim relief. It is implicit that it is only the plaintiff, that can contemplate the relief that it seeks in a suit. And, pre-institution mediation is necessary only in cases where a plaintiff does not contemplate urgent interim relief. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 10 CPC 4. The appellant had filed the suit [being CS(COMM) No. 132/2021 captioned Chandra Kishore Chaurasia v. R.A. Perfumery Works Private Ltd.] seeking a decree of permanent injunction restraining infringement of its copyright, trademark, passing off and rendition of accounts amongst other reliefs. The appellant claimed that he is the registered proprietor of the trademarks '1192' and 'JAGMAG 1192'. The said trademarks were registered with the Trade Mark Registry under class 34 bearing registration Nos. 2317657 and 2317658 dated 19.04.2012. The appellant also claimed that he holds copyright in the label/packaging, original artistic work, getup, layout and pattern, 'JAGMAG 1192'. And, the same is registered under the Copyright Act, 1957 bearing registration No. A-111868/2014 dated 23.09.2014. 5. The appellant is a resident of Surajkund, Varanasi, Uttar Pradesh. The respondent is a company incorporated under the Companies Act, 1956 and has its registered office in Kolkata, West Bengal. 6. The appellant alleges that the respondent is clandestinely manufacturing and selling chewing tobacco and other allied products under the label/trademark 'SIGNAL 119 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the Division Bench should have taken the allegations contained in the plaint to be correct. 12. The aforesaid view has been constantly followed by this Court as well. In M/s RSPL Limited v. Mukesh Sharma Anr.: (2016) SCC OnLine Del 4285, a Coordinate Bench of this Court held as under: 11. It must be stated that it is a settled proposition of law that the objection to territorial jurisdiction in an application under Order 7 Rule 10 CPC is by way of a demurrer. This means that the objection to territorial jurisdiction has to be construed after taking all the averments in the plaint to be correct. In Exphar SA v. Eupharma Laboratories Limited: (2004) 3 SCC 688, the Supreme Court observed that when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts, as pleaded by the initiator of the impugned procedure, are true. The S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the undue advantage of the pre-established goodwill and reputation of the product of the plaintiff''s 'Chewing Tobacco' bearing registered trade mark JAGMAG 1192, the mark 1192 and its registered label/packaging of JAGMAG 1192, and with a view to make easy money, the Defendant has indulged. in the clandestine manufacturing, selling, soliciting and exporting of the chewing tobacco in the identical/deceptively similar impugned label/packaging/colour combination/artistic work bearing mark SIGNAL 1191 bearing impugned mark 1191 which is identical/deceptively same in all respects to the artistic work/color scheme/get-up/placement of the registered label/packaging and registered trademark JAGMAG 1192 and the mark 1192 of plaintiff's. The cause of action is a continuous one and continues to subsist till such time the defendant is restrained by this Hon'ble Court from carrying on their illegal trade activities and malafide acts of using the impugned identical/ deceptively similar trademark, label, packaging, artistic work, colour scheme, getup and colour combination on the labels/packaging or any other identical/deceptively similar mark or artistic work. 34) That th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Commercial Court found that the appellant had not produced any evidence to substantiate that the respondent was clandestinely selling the infringing products within the territorial jurisdiction of the Court. The learned Commercial Court accepted the contention that in case of clandestine sales, cash memos would not be readily available; however, the court did not, prima facie, find any merit in the allegation of clandestine sales as the appellant had not provided any material particulars regarding any such clandestine transaction. The learned Commercial Court held that the appellant had failed to establish that the respondent was either carrying on its business activities within the territorial jurisdiction of this Court or otherwise intended to do so. 18. The appellant's contention that the respondent was carrying on its business activities through interactive websites was also not accepted. The learned Commercial Court held that the appellant had neither filed any documents to show that the respondent was targeting customers through the interactive sites in Delhi nor produced any other material in support of this claim. 19. In view of the above, the learned Commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king exemption from the provision of pre-institution mediation. He contended that ae suit could be entertained only once such an application was moved and allowed. 25. He referred to an order dated 30.09.2020, passed by the learned Single Judge of this Court in an application seeking amendment of the plaint filed by the plaintiff in CS(OS) 201/2020 captioned Anil Gupta v. Baburam Singla, Proprietor of Singla Sweets Anr. He pointed out that in the said order, the Court had observed that the plaintiff had neither filed an application seeking exemption nor leave in the present suit for exempting the plaintiff from the process under Section 12A of the Commercial Courts Act, 2015. Further, the Court had issued summons subject to the plaintiff filing an application seeking exemption under Section 12A of the Commercial Courts Act, 2015 to the defendants. 26. He referred to the decision of the Supreme Court in Patil Automation Private Limited and Ors. v. Rakheja Engineers Private Limited: 2022 SCC OnLine SC 1028 and contended that the provisions of Section 12A of the Commercial Courts Act, 2015 are mandatory and on an analogy of Section 80 of the CPC-which was also referred to by the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (4) of section 30 of the Arbitration and Conciliation Act, 1996. . 29. A plain reading of Sub-section (1) of Section 12A of the Commercial Courts Act, 2015 indicates that the institution of a suit, which does not contemplate any urgent interim relief, is proscribed unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with the procedure as may be prescribed. There is no ambiguity that a suit, which contemplates urgent interim relief, is excluded from the rigor of Section 12A(1) of the Commercial Courts Act, 2015. Thus, a plaintiff seeking to institute a suit involving urgent interim relief(s) is not required to exhaust the remedy of pre-institution mediation. 30. The contention that it would be necessary for the plaintiff to file an application seeking exemption from the provisions of Section 12A of the Commercial Courts Act, 2015, is unmerited. This Court cannot accept the said contention for several reasons. 31. First of all, there is no provision under Section 12A of the Commercial Courts Act, 2015 that requires the plaintiff to make any such application in a suit which involves urgent interim reliefs. As stated above, if the suit involves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution remedy of mediation as contemplated under Section 12A(1) of the Commercial Courts Act, 2015. 36. The order dated 30.09.2018, passed by the learned Single Judge in Anil Gupta v. Baburam Singla, Proprietor of Singla Sweets and Anr. (supra), is of little assistance to the respondent. The observations made in the said order are not dispositive of any question whether a separate application is required to be made under Section 12A of the Commercial Courts Act, 2015. The contention that such an application is required to be made on an analogy of Section 80 of the CPC is also erroneous. In Patil Automation Private Limited and Ors. v. Rakheja Engineers Private Limited (supra), the Supreme Court had pointed out that unlike the provisions of Section 80 of the CPC, there is no provision in Section 12A of the Commercial Courts Act, 2015 that contemplates a procedure for seeking leave of the court. Paragraph 81 of the said decision is relevant and set out below: 81. In the cases before us, the suits do not contemplate urgent interim relief. As to what should happen in suits which do contemplate urgent interim relief or rather the meaning of the word 'contemplate' or urgent interi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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