Dabur India Limited v. K. R. Industries

( 1. ) This appeal is directed against the judgment and order passed by the learned Single Judge on 22nd May, 2006 allowing the application filed by the defendant/respondent herein under Order VII Rule 11 of the Code of Civil Procedure.

( 2. ) By the aforesaid order, the learned Single Judge held that the suit filed by the appellant herein, insofar it relates to the relief for passing off, is not maintainable for want of territorial jurisdiction and since the plaint is filed for both causes of action, namely, infringement of copy right and passing off, the same is required to be returned to the appellant / plaintiff for filing in the Court of competent jurisdiction.

( 3. ) We have heard the learned counsel appearing for the appellant. Mr. Shailen Bhatia, who had been appearing for the respondent herein in the Suit, is present in Court and States that after the decision in rendered is the Suit he has returned the brief to his client and thereafter he has no instructions to appear in the present appeal.

( 4. ) Counsel for the appellant has drawn our attention to paragraph 6 of the impugned judgment and has submitted before us that the fact that this Court has jurisdiction in respect of the relief for infringement of copy right in this case, is not disputed. It is, therefore, submitted that at least to the aforesaid extent, i.e. with regard to the issue of territorial jurisdiction of this Court in respect of the relief for infringement of copyright, as held by the learned Single Judge and not challenged by any of the parties, this Court will have jurisdiction to decide and adjudicate upon the aforesaid relief for infringement of copyright, which was one of the reliefs claimed for in the suit. We find force in the aforesaid submission of the counsel appearing for the appellant to the aforesaid extent only.

( 5. ) So far the relief for passing off is concerned, in our considered opinion, the ratio of the decision of the Supreme Court in Dhodha House and Patel Field Marshal Industries v. S.K. Maingi and P.M. Diesel Ltd., 2006 (32) PTC 1 (SC) is squarely applicable. The learned Single Judge has also held that so far as the aforesaid relief relating to passing off is concerned, Delhi Court does not have any territorial jurisdiction as the respondent/defendant is from Andhra Pradesh and there is no documentary evidence to show that the respondent was selling goods in Delhi. We agree with the aforesaid findings and conclusions recorded by the learned Single Judge. Accordingly, we find no merit in the submissions of the counsel appearing for the appellant that a composite suit of infringement of copy right and passing off would lie in the same Forum. We also do not find any error in the judgment of the learned Single Judge as in our considered opinion so far the relief for passing off is concerned, the same is covered by the decision of the Supreme Court in Dhodha House case.

( 6. ) So far the relief claimed as against the infringement of copyright is concerned, it is clearly established that the trial Court will have the territorial jurisdiction and, therefore, we also agree with the conclusions and findings recorded by the learned Single Judge that in the case of infringement of copyright, this Court will have the jurisdiction. The learned Single Judge has directed that the plaint be returned to the appellant/plaintiff for filing of the same in the Court of competent jurisdiction. We make it clear that it will be open to the appellant / plaintiff to file a fresh suit in the Court of competent jurisdiction in accordance with law with a further observation that so far as the relief for infringement of copyright is concerned, this Court will have jurisdiction. In terms of the aforesaid order, the appeal stands disposed of.