D.R. Dhanuka, J:
1. The Plaintiffs have filed this Petition for grant of leave under Clause 14 of the Letters Patent.
2. On 10th July 1989, the Plaintiffs filed this Suit against the Defendants for three different orders of permanent injunctions and for various other relies, In the Plaint, the Plaintiffs have complained of alleged infringement of trade marks, alleged passing-off and alleged breach of copyright, as more particularly set out in the Plaint. The 1st Defendant-Company carries on business at Calcutta. The Defendant No. 2 is the sole proprietor of the 1st Defendant-Company.
3. It is the contention of Defendants Nos. 1 and 2 that Defendants Nos. 1 and 2 have never supplied any goods in Bombay, directly or indirectly. The trade mark of the 1st Defendant-Company was duly registered by the Registrar of Trade Marks at Calcutta. The Plaintiffs have preferred an appeal against the said order and the said appeal is pending in the High Court of Calcutta.
4. The Plaintiffs did not seek any leave of this Court under Clause 12 of the Letters Patent. The Plaintiffs also did not seek any leave of this Court under Clause 14 of the Letters Patent at the stage of institution of the Suit. The Plaintiffs filed this suit on the basis of the averments made in the Plaint that the Defendants were committing the acts of infringement and passing-off in Bombay and the Defendants' products were commercially available in Bombay. The Plaintiffs had joined M/s. Satyam Motors as Defendant No. 3 in the Suit. In paragraph 3 of the Plaint, the Plaintiffs alleged that the 3rd Defendant-Company stocks and sells the goods manufactured by Defendants Nos. 1 and 2 in Bombay. The said averment is held by me to be untrue or as unproved in my Order dated 9th September 1991 on Notice of Motion No. 1905 of 1989.
5. On 9th September 1991, I disposed of the Notice of Motion. By my said Order, I held that the factual averments made in the Plaint invoking the jurisdiction of this Court were untrue or unproved. I held that this Court had no jurisdiction to entertain the Suit in respect of the cause of action based on alleged infringement of trade marks or passing off. In view of the provisions of Section 62(2) of the Copyright Act, 1957, I held that this Court had jurisdiction to entertain the Suit in respect of the alleged cause of action pertaining to the alleged breach of copyright. At that stage, the Plaintiffs presented this petition under Clause 14 of the Letters Patent for leave of the Court to join all the three causes of action in this Suit. Technically speaking the petition for leave under Clause 14 of the Letters Patent can be presented at any stage.
6. It is well settled that the question as to whether the leave sought ought to be granted or not should be decided after considering the totality of facts and circumstances of the case and judicial discretion ought to be exercised. It has been pointed out in the affidavit reply that the Plaintiffs have a branch office at Calcutta. It has been pointed out in the affidavit in reply that the Plaintiffs market their goods at Calcutta. The Plaintiffs and the Defendants both carry on business at Calcutta. The Plaintiffs carry on business also at Bombay. Thus, on the ground of undue hardship and inconvenience, it has been submitted that the Plaintiffs have deliberately chosen the forum of this Court to cause serious inconvenience to Defendants Nos. 1 and 2 and to put Defendants Nos. 1 and 2 to undue hardship. Prima facie, there is merit in this contention.
7. Section 62(2) of the Copyright Act, 1957, enacts a special provision so as to permit the plaintiff to file a suit in a court of odd place where the plaintiff carries on business. Sub-section (2) of Section 62 of the Act thus makes a departure from the normal law that a suit ought to be instituted at the place where the defendant carries on business on personally works for gain. The material part of the cause of action has not arisen at Bombay. Perhaps no part of the cause of action has arisen at Bombay. The 1st Defendant-Company does not carry on business in Bombay. Defendant No. 2 does not reside in Bombay. The Plaintiffs carry on business at Bombay and Calcutta. The Plaintiffs are technically entitled to file the Suit in this Court in so far as the alleged infringement of copyright is concerned, having regard to the provisions of Section 62(2) of the Act. Section 62(2) of the Act does not prevent the Plaintiffs from filing the Suit in Calcutta. If the Plaintiffs desire to file the Suit in Calcutta. The courts of the place where the plaintiff carries on business are additional forums available to the plaintiff but not the only forums available to the plaintiff. The Plaintiffs shall suffer no hardship if a composite suit is filed at Calcutta. The Hon'ble Supreme Court has jurisdiction to direct the transfer of this Suit to any other court in exercise of its power under Section 25 of the Code of Civil Procedure, 1908, in the interest of justice if a case is made out. It has been submitted by Mr. Tulzapurkar the learned Counsel for the Plaintiffs, that I should grant leave under Clause 14 of the Letters Patent in order to prevent multiplicity of proceedings. At the first blush, there appeared to be some force in this submission. However, I am unable to accept this submission. The Plaintiffs can prevent multiplicity of proceedings by adopting a reasonable attitude of filing a suit in Calcutta. If the plaintiffs do not want to do that this Court need not grant leave to the plaintiffs to invoke the jurisdiction of this Court for joinder of other causes of action when the Plaintiffs' conduct is blameworthy. A similar view was taken by the High Court of Madras in the case of Brooke Bond India Ltd. v. Balaji Tex (India) Pvt. Ltd., 1990 I.P.L.R. Vol. 15, at page 266. I am in respectful agreement with the view taken in this case. Mr. Tulzapurkar relied upon the judgment of Pendse, J., in Burrough Wellcome (India) Ltd. v. G.K. Sharma and King Scientific Research Centre (Misc. Petition No. 13 of 1989 in Suit No. 4005 of 1988 decided on 16th March 1989) (I.P.L.R. 1989 Vol 14, p. 60). I see no inconsistency between the view taken by the High Court of Madras and the view of the High Court of Bombay in the above referred cases. Granting or refusing to grant leave under Clause 14 of the Letters Patent is a matter of judicial discretion. Several factors are required to be weighed for exercise of judicial discretion. One of such factor is the desire of the Court to prevent multiplicity of proceedings. Another such factor is the conduct of the parties. The third of such factors is the undue hardship which the Defendants may face in producing evidence and defending the action. I am concious of the fact that the result of refusing leave under this Petition would be that this Suit shall remain pending in this Court and another suit may be filed in High Court of Calcutta by the Plaintiffs alleging infringement of trade marks and passing-off. Such a course also would not be totally satisfactory. After considering totality of facts and circumstances of the case, I prefer not to grant leave to the Plaintiffs as sought, following the precedent of the Madras High Court referred to herein above.
8. Since the Plaintiffs have failed to make out a case for exercise of my discretion, I have no hesitation in rejecting this Petition.
9. The Petition is accordingly rejected with costs.
