Kensoft Infotech Ltd v. R.s. Krishnaswami And Ors

Reva Khetrapal, J.

1. The present suit is filed by the Plaintiff for permanent injunction, restraining infringement of copyright, breach of confidence, damages and rendition of accounts of profits.

2. The Plaintiff is a software company engaged in the business of developing application software having its registered office at Mumbai. The Plaintiff alleges that the Defendants have infringed the flagship product of the Plaintiff "KEN HFS" (hereinafter referred to as "Kensoft system") which is a housing finance software for use by companies engaged in the said business. The said niche Kensoft System was originally developed by the Plaintiff in the year 1994 and was initially installed with the Bank of India in the year 1994 itself. Subsequently, in the year 1996, it was installed at the premises of Defendant No. 3. Allegedly, the Plaintiffs software has many unique features and the Plaintiff being the first owner of the copyright in the aforesaid literary work within the meaning of Section 17 of the Copyright Act, 1957 is entitled to the exclusive rights flowing from such ownership.

3. The Defendant No. 1 is a Director of the Defendant No. 2, i.e., Phonenix Softnet Technologies Pvt. Ltd., having its registered office at Mumbai. Defendant No. 3 is the GIC Housing Finance Ltd., Universal Insurance Building, Sir, P.M. Road, Fort, Mumbai.

4. the fulcrum of the case of the Plaintiff is that the Defendants No. 1 and 2 in conjunction with Defendant No. 3 have hacked and infringed the copyright of the Plaintiff in its Kensoft System by unlawfully reproducing the said System without the Plaintiffs consent, permission or license and offered the said software for sale under the name "Home Loans Express". The Plaintiff alleges that this was brought to the notice of Plaintiff by one of its clients i.e. M/s Sundaram Finance and while the Plaintiffs investigations were ongoing, the Plaintiff received an e-mail from one M/s. Shirdi Industries Pvt. Ltd., wherefrom to the utter shock of the Plaintiff, it discovered that Defendant No. 3 had written to M/s. Shirdi Industries Pvt. Ltd. and claimed to have developed the said "Housing Loans Express".

5. On the above facts, by order dated 28th July, 2006, an ex parte ad interim injunction was granted by this Court to the Plaintiff restraining the Defendants from using or otherwise copying, selling, offering for sale or distributing the infringing version of the Plaintiffs software. In order to ascertain the correct factual position, this Court also appointed two Local Commissioners to visit the Defendants premises to inspect the computers of the Defendants No. 2 and 3 with the help of an independent technical expect and to take print outs of the source code and back ups of all the hard discs containing the infringes software.

6. The aforesaid ex-parte interim order led to the filing of an appeal being FAO(OS) No. 505/2006, which was dismissed as withdrawn on 07.08.2006, as the same had been filed without moving an application under Order XXXIX Rule 4 Code of Civil Procedure for vacation of the stay order. A second appeal, being FAO(OS) No. 524/2006, was also dismissed as withdrawn with liberty to the Appellant to raise the issues raised in the appeal before the Single Judge on 21.8.2006. On 08.09.2006, when the matter came up for hearing before this Court, however, it was agreed between the parties that an expert comparison would be required for coming to a conclusion as to whether the software of the Plaintiff i.e. "KEN-HFS" was identical/similar with the software of the Defendant No. 1. Thereupon, a consent order was passed, whereby and whereunder Mr. Narain Murthy of Infosys was requested to undertake the comparative evaluation of the two software and record his conclusions thereon. The said order dated 8th September, 2006 reads as follows:

8.9.2006:

...

IAs No. 8306/2006, 9153/2006 and 9497/2006

It is agreed between the parties that an expert comparison would be required for coming to a conclusion as to whether the software of the Plaintiff, that is, "KEN-HFS" is identical/similar with the software of the Defendant No. 1, which is lying deposited with this Court. It is further agreed between the parties that an expert comparison will also be required in the matter of comparison of Graphic User Interface (GUI) and the Schema. It is also agreed between the parties that Mr. Narain Murthy of Infosys be requested to undertake the comparative evaluation of the two software and record his conclusions thereon. Accordingly, Mr. Narain Murthy of Infosys is requested to examine the two software lying deposited in this Court and to give his report on the similarities and dissimilarities between the two software. Both parties shall appear before Mr. Narain Murthy and render whatsoever assistance is sought by him in the matter. Mr. Narain Murthy is also requested to fix his own fees and expenses, which shall be borne equally by the parties. The registry shall send the software deposited by the Plaintiff as well as the software deposited by the Defendant to Mr. Narain Murthy in sealed cover through the concerned Assistant. It is agreed between the parties that an application will be jointly filed by the parties giving a convenient date for the said purpose.

It would be pertinent at this juncture to record that counsel for Defendant No. 3 makes a statement that the software seized from the premises of Defendants No. 1 and 2 and deposited by the Local Commissioner is the same software which is being used by the Defendant No. 3.

7. Instead of complying with the aforesaid orders passed by consent of the parties on 14th September, 2006, the Defendants filed an application, being I A. No. 10294/2006 under Order XXXIX Rule 4 Code of Civil Procedure, for vacation of the stay order. Notice of the said application was issued to the Plaintiff, who sought time for filing a reply and was directed to do so before the next date, i.e., 4th October, 2006. In the meanwhile, a Special Leave Petition being SLP (Civil) No. 16488/2006 was filed before the Honble Supreme. The Supreme Court by its order dated 29th. September, 2006 directed the parties to argue the injunction application before the High Court and that is how the matter has come up before me.

8. In the course of arguments, and after substantial arguments had been addressed on the injunction application by learned Senior Counsel for the Plaintiff, Shri V.P. Singh, a plea in the nature of demurrer was raised by learned Senior Counsel for the Defendant Shri Vijay Hansaria that this Court lacks territorial jurisdiction to hear the matter and hence the plaint was liable to be returned to be presented in the Court having jurisdiction to entertain the same.

9. Faced with said plea, learned Counsel for the Plaintiff sought to urge that such a plea could not be considered at this stage, more so when the Defendants had filed no application, either under Order VII Rule 10 or under Order VII Rule-11 of the Code of Civil Procedure.

10. At the outset, it may be stated that it is trite law that a prayer for rejection of plaint founded on the plea of demurrer has to be determined by advertence to the allegations contained in the plaint made by the Plaintiff and those allegations for purpose of consideration of the plea of demurrer must be taken to be true. It was so laid down by the Supreme Court in O.N. Bhatnagar v. Rukibai Narsindas and Ors. : 1982 (2) SCC 244 [LQ/SC/1982/89] and Roop Lal Sathi v. Nachattar Singh Gill : 1982 (3) SCC 487 [LQ/SC/1982/156] .

11. In Abdullah Bin Ali and Ors. v. Galappa and Ors. : 1985(2) SCC 54, it was said that there was no denying the fact that the allegations made in the plaint decide the forum and that jurisdiction does not determine upon the defence taken by the Defendants in the written statement.

12. In Exphar SA and Anr. v. Eupharma Laboratories Ltd. and Anr. : 2004 (3) SCC 688 [LQ/SC/2004/257] , it was observed: (SCC P. 692, Paras 9 and 10)

Besides 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 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 the plaint on the ground of jurisdiction, the Division Bench should have taken the allegations contained in the plaint to be correct. However, the Division Bench examined the written statement filed by the Respondents in which it was claimed that the goods were not at all sold within the territorial jurisdiction of the Delhi High Court and also that Respondent No. 2 did not carry on business within the jurisdiction of the Delhi High Court. Having recorded the Appellants objections to these factual statements by the Respondents, surprisingly the Division Bench said:

Admittedly the goods are being traded outside India and not being traded in India and as such there is no question of infringement of trademark within the territorial limits of any Court in India what to say of Delhi.

10. Apart from the ex-facie contradiction of this statement in the judgment itself, the Division Bench erred in going beyond the statements contained in the plaint.

13. Following the same principle in Indian Mineral and Chemicals Co. and Ors. v. Deutsche Bank : (2004) 12 SCC 376 [LQ/SC/2004/722] , it was observed that "the assertions made in the plaint must be assumed to be true for the purpose of determining where the leave is liable to be revoked on the point of demurrer.

14. In a recent judgment in Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and Ors. : 2006 (5) SCC 638 [LQ/SC/2006/583] , the Apex Court with reference to plea of demurrer observed as follows: (SCC page 650 para 14)

Demurrer is an act of objecting or taking exception or a protest. It is a pleading by a party to a legal action that assumes the truth of the matter alleged by the opposite party and sets up that it is insufficient in law to sustain his claim or that there is some other defect on the face of the pleadings constituting a legal reason why the opposite party should not be allowed to proceed further.

15. In view of the above, it is beyond the pale of controversy that for deciding a plea of demurrer, only the averments made in the plaint are germane. They have to be considered without reference to the written statement. In fact, such a plea could also be considered when the Defendants in a suit have filed a written statement, but without going into the defence taken by the Defendant in its written statement. Viewed from this angle, a plea in the nature of demurrer is on the same footing and is not different from a plea of lack of jurisdiction under Order VII Rule 10 or for rejection of plaint under Order VII Rule 11 Code of Civil Procedure.

16. As held in the case of Liverpool and London S.P. and 1 Association Ltd. v. M.V. Sea Success I and Anr. : 2004(9) SCC 512, if a legal question as to jurisdiction is raised by the Defendant in the written statement, it does not mean that the same has to be decided only by way of an application under Order VII Rule 11 of Code of Civil Procedure. It was further held that for the said purpose the averments made in the plaint in their entirety must be held to be correct; and the documents having regard to Order VII Rule 14 Code of Civil Procedure are also required to be taken into consideration for the purpose of disposal of application under Order VII Rule 11 Code of Civil Procedure.

17. In Shree Subhlaxmi Fabrics Pvt. Ltd. v. Chand Mal Baradia and Ors. : 2005 (10) SCC 704 [LQ/SC/2005/406 ;] ">2005 (10) SCC 704 [LQ/SC/2005/406 ;] [LQ/SC/2005/406 ;] , it was categorically laid down that where a plea of lack of jurisdiction is raised, it is incumbent upon the Court to record a clear finding that it has territorial jurisdiction before granting an injunction to the Plaintiff, for the reason that the plea of jurisdiction goes to the very root of the matter. The Supreme Court observed: (SCC, page-714, para 20)

In our opinion, the approach of the High Court is not correct. The plea of jurisdiction goes to the very root of the matter. The trial Court having held that it had no territorial jurisdiction to try the suit, the High Court should have gone deeper into the matter and until a clear finding was recorded that the Court had territorial jurisdiction to try the suit, no injunction could have been granted in favour of the Plaintiff by making rather a general remark that the Plaintiff has an arguable case that he did not consciously agree to the exclusion of the jurisdiction of the Court.

18. A Division Bench of the Allahabad High Court in the case of Umesh Chandra Saxena and Ors. v. Administrator General, Uttar Pradesh : AIR 1999 All 109 [LQ/AllHC/1998/1393] , who confronted with a preliminary objection from the side of the Plaintiff that a prayer for rejection of the plaint could not be entertained at the stage of framing of issues. At page 125 of the Report the Court held as follows:

Order 7, Rule 11 Code of Civil Procedure, as already observed, casts a duty upon the Court to reject a plaint if the circumstances indicated therein were existing. It cannot be the law that this power of the Court would be curtailed in any manner simply because the Court had proceeded at some length, without application of mind on this point. The Rule itself does not indicate anywhere that the power is to be exercised upon an application, or if such application is filed it should be at any particular stage... We would only add that an action under Order 7 Rule 11, Code of Civil Procedure does not await an application by any party. It is the duty of the Court to reject a plaint if the reasons therefore are found existing from a reading of the plaint itself not from a reading of the defence or other documents.

19. The spectrum of Order VII Rule 11 and the legal ambit of its provisions were considered in depth by the Supreme Court in the case of Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors. : 2004(3) SCC 137. In the said case, relying upon Saleem Bhai v. State of Maharashtra : 2003 (1) SCC 557 [LQ/SC/2002/1340] , it was held that "for the purpose of deciding an application under Clauses (a) and (d) Order VII Rule 11 of the Code, the averments made in the plaint are germane: the pleas taken by the Defendant in the written statement would be wholly irrelevant at that stage." It was further emphasized that a meaningful and not formal reading of the plaint was incumbent so as to nip in the bud any clever drafting of the plaint. The earlier decision of the Court in Raptakos Brett and Co. Ltd. v. Ganesh Property : 1998 (7) SCC 184 [LQ/SC/1998/928] was also relied upon wherein it was observed that the averments in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII was applicable.

20. The following pertinent observations were made by the Supreme Court in the Sopan Sukhdeo case (supra), which are apposite for the decision of the present case: (SCC, page-146, para 15)

There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or substraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities

In paragraph 16 it was emphasized: (SCC, page-147, para 16)

The reliefs claimed do not constitute cause of action. On the contrary, they constitute the entitlement, if any, on the basis of pleaded facts.

In paragraph-20 it was further observed (SCC Page 148, para-20):

Rule 11 of Order VII lays down an independent remedy made available to the Defendant to challenge the maintainability of the suit itself, irrespective of his rights to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word shall is used, clearly implying thereby that it casts duty on the Court to perform its obligations in rejecting a plaint when the same is hit by any of the infirmities provided under the four clauses of Rule 11, even without intervention of the Defendant. In any event, the rejection of the plaint under Rule 11 does not preclude the Plaintiffs from presenting a fresh plaint in terms of Rule 13.

21. Bearing in mind the aforesaid broad principles of law relating to the plea of demurrer (which plea, as noted above, is governed by principles akin to those governing applications under Order VII Rule 10 and Order 7 Rule 11), I proceed to examine the averments made in the plaint in their entirety, assuming the same to be correct. Before embarking upon this exercise, it is deemed expedient to clarify that though it is proposed to scrutinize the documents relied upon by the Plaintiff (which as held by the Apex Court is wholly permissible), the averments made in the written statement filed by the Defendants are not being taken into account.

22. Looking to the plaint, in paragraph-1 of the plaint, it is averred that the Plaintiff Kensoft Infotech Ltd., is a Company incorporated under the Companies Act, having its office at 105A, SDF IV, Special Economic Zone, Andheri (East), Mumbai. Paragraphs 2 to 18 of the plaint detail the activities of the Plaintiff and the right of the Plaintiff over the Kensoft System developed by its employees and installed at the premises of the Defendant No. 3 at Mumbai.

23. In paragraph-19 of the plaint it is stated that Defendant No. 1 Mr. R.S. Krishnaswami is the Director of Defendant No. 2 i.e., Phoenix Softnet Technologies Pvt. Ltd at 513, 5th Floor, Reena Complex, Ram Dev Nagar, Opposite Nathani Steel, Vidya Vihar (West), Mumbai. Defendant No. 1 is arrayed in his personal capacity as the Defendant No. 1 is alleged to be personally engaged in the infringement of the Plaintiffs software and "in making claims, falsely, relating to the antecedents and circumstances of creation of Defendant No. 2s software." Defendant No. 2 is a Company engaged in developing software. Defendant No. 3 is the GIC Housing Finance Ltd. at Universal Insurance Building, Sir, P.M. Road, Fort, Mumbai (which also maintains a branch office at New Delhi at Tolstoy Marg) and is the Company to whom the Plaintiff licensed its Kensoft System.

24. Paras 20 to 25 of the plaint deal with the installation of the Plaintiffs software, "Kensoft System" at the premises of the Defendant No. 3 in Mumbai and its upgradation from time to time.

25. In paragraph-26 of the plaint, it is alleged that on April 6, 2006, the Plaintiff received an e.mail from its clients M/s. Sundram Home Finance Ltd. that enclosed a mail written by Defendant No. 1 which claimed that Defendant No. 2 had created a Housing Finance Software named as "Housing Loans Express".

26. In paragraph-27 of the plaint, it is stated that while Plaintiffs investigations were ongoing, the Plaintiff received a mail from M/s. Shirdi Industries Pvt. Ltd. wherefrom

To the utter shock of the Plaintiff is discovered that Defendant No. 3 had written to M/s. Shirdi Industries Pvt. Ltd. and claimed to have been developed the said "Housing Loans Express". Even more shockingly, Defendants No. 1 and 2 claimed that it had developed the said "Housing Loans Express" for the Defendant No. 3 and went on to invite the said M/s. Shirdi Industries Pvt. Ltd. to the premises of Defendant No. 3 to view the said software in a "real time" setting. The said mail contained printouts of the interface of the Defendants software programme. On a perusal of the said GUI examples enclosed by the Defendant No. 1 in his mail, it was clear that the said software was a substantial reproduction of the Plaintiffs Kensoft System. Subsequently, on July 16,2006, Defendants No. 1 and 2 also sent a formal proposal to Shirdi Industries Pvt. Ltd. on the basis of the infringing software. Printouts of the said mails, attachments and proposals received therewith are filed with the present proceedings.

27. Paragraph 28 of the plaint deals with the similarities of the two software systems.

28. In paragraph-29 of the plaint, it is alleged "that the Defendants have blatantly copied and reproduced Plaintiffs programme.

29. In paragraph-30 of the plaint, the same allegation is twice reiterated. It is alleged that the source code has been" unlawfully procured, or even hacked into" and "has been altered, tampered with or hacked into by the Defendants.

30. In paragraph-31 of the plaint, it is alleged that the act of the Defendants of copyright the valuable proprietary information of the Plaintiff amounts to breach of confidential information. It is, however, stated in this paragraph, that it is the Defendant No. 3 who has "unlawfully reproduced the same without Plaintiffs consent, permission or license for their new project for which they do not have any agreement or contract with the Plaintiff." It is further stated that Defendant No. 3 "has transferred the confidential information identified at para-18 of the plaint to the Defendants No. 1 and 2.

31. In paragraphs 32 to 34 of the plaint, it is again reiterated "that the Defendants have unlawfully violated not only the Plaintiffs copyright but also the confidential information of the Plaintiff.

32. Paragraphs 35 and 36 of the plaint pertain to the cause of action and jurisdiction and being relevant are being reproduced hereunder:

CAUSE OF ACTION

35. The cause of action in this suit first arose on 3rd July 2006 when the Plaintiff first received a mail from M/s. Shirdi Industries Ltd., when the Plaintiff first confirmed that the Defendant Nos. 1 and 2 in conjunction with the Defendant No. 3 were engaged in infringing the copyright of the Plaintiff in its Kensoft System by reproducing the said software and offering the said software for sale under the name "Home Loans Express", the cause of action is a continuing one and will continue to subsist until Defendants are stopped by order of an injunction passed by this Honble Court.

JURISDICTION

36. This Honble Court has jurisdiction to entertain and try this suit under the provision of Section 20 of the Code of Civil Procedure, 1908 as the Defendant No. 3 maintains a branch office at Vandana Building, 9th Floor, Connaught Place, 11-Tolstoy Marg, New Delhi 110 001. The Plaintiff states that as is claimed by the Defendant No. 1 and 2, the said branch (as all 23 branches of the Defendant No. 3) also uses the infringing software at the Delhi Branch, as has been claimed by the Defendants No. 1 and 2 in its e mail correspondence to M/s. Shirdi Industries Ltd., and thus the cause of action has also arisen partially within the jurisdiction of this Honble Court.

33. It is evident from the above that the offices of the Plaintiff are at Mumbai alone. The Plaintiff does not carry on business or personally work for gain at New Delhi. According to the cause title in the plaint itself, the Plaintiff has its office at:

KENSOFT INFOTECH LTD.

105 A, SDFIV Special Economic Zone

Andheri (E), Mumbai 400 096

The Plaintiff does not have its registered office or even a branch office at New Delhi nor it has been so alleged in the plaint. There is no averment in the plaint about the Plaintiff having any office at any place within the territorial jurisdiction of this Court. Thus, Section 62(2) of the Copyright Act, which creates an additional forum for the Plaintiff, cannot be availed of by the Plaintiff.

34. According to the averments made in the plaint, this Court has jurisdiction to entertain and try this suit under the provisions of Section 20 of the Code of Civil Procedure, 1908. The provisions of Section 20 of the Code of Civil Procedure, being opposite, are being reproduced hereunder:

"20. Other suits to be instituted where Defendants reside or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-

(a) the Defendant, or each of the Defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the Defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the Defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

(Explanation)- A corporation shall be deemed to carry on business at its sole or principal office in (India) or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

35. It is not in dispute that the Defendant No. 1-Shri R.S. Krishnaswami, Director, Phoenix Softnet Technologies Pvt. Ltd. and the Defendant No. 2-Phoenix Softnet Technologies Pvt. Ltd. reside, carry on business and personally work for gain at Mumbai and have no office within the territorial jurisdiction of this Court. The Defendant No. 3, as per the plaint, carries on business at Fort, Mumbai, but has a branch office at Tolstoy Marg, New Delhi along with 23 other branches offices spread over the country, all of which use the software of the Plaintiff and thus, according to the Plaintiff, the cause of action has also arisen partially within the jurisdiction of this Court.

36. In the backdrop of the aforesaid facts, I have heard learned Senior Counsel for the Plaintiff, Shri V.P. Singh and learned Senior Counsel for the Defendant No. 3, Shri Vijay Hansaria, at length.

37. Learned Senior Counsel for the Defendant No. 3 has, in support of his contention that neither the plaint nor the documents disclose any cause of action within the territorial jurisdiction of this Court, raised the following pleas:

(i) The Plaintiff resides and carries on business at Mumbai. Defendants No. 1 to 3 also reside and carry on business at Mumbai except that the Defendant No. 3 has a branch office at Delhi.

(ii) The alleged infringing software was developed and sold to the Defendant No. 3 at Mumbai and all the four contracts in this regard were admittedly signed and executed by the parties at Mumbai, the consideration was admittedly paid by the Defendant No. 3 and accepted and acknowledged by the Plaintiff at Mumbai. Even the pre-contract presentations were afforded by the Plaintiff to the Defendant No. 3 at Mumbai. The entire correspondence between the Plaintiff and Defendant No. 3 was sent and received at Mumbai, the minutes of meetings between the Plaintiff and Defendant No. 3 are at Mumbai and the User Acceptance Tests (UATs) between the Plaintiff and Defendant No. 3 were at Mumbai. A chart in this regard has been placed on record.

(iii) The sheet anchor of the plaint is that the Defendants No. 1 and 2 have copied the software of the Plaintiff. This is the main allegation in the plaint and this has admittedly taken place at Mumbai and not at Delhi.

(iv) A perusal of paragraph 35 of the plaint, which is captioned "Cause of Action", shows that the cause of action, as per the Plaintiff, arose on 3rd July, 2006 when the Plaintiff received a mail from M/s. Shirdi Industries Limited, wherefrom the Plaintiff first confirmed that the Defendants No. 1 and 2 were in conjunction with Defendant No. 3 engaged in infringing the copyright of the Plaintiff in its "Kensoft System" by reproducing the said software and offering the said software for sale under the name "HOME LOAN EXPRESS". The said e-mail emanated from Mumbai and was from Mumbai to Mumbai and not either from Delhi, or to Delhi. Thus, no part of the cause of action arose at Delhi.

(v) Ordinarily, it is the Court at the place within whose territorial jurisdiction the cause of action has substantially, materially and pre-eminently arisen which must be held to have jurisdiction to entertain the suit.

(vi) Merely because Defendant No. 3 has a branch office/service centre at Delhi, the same does not confer jurisdiction on this Court. The Defendant No. 3 has 23 branches spread all over India. If the Court where the branch office is located is held to have jurisdiction, it would lead to absurd results. Thus, for instance, the State Bank of India has 42 branches in Arunachal Pradesh alone, including in remote areas thereof. If the location of a branch office simplicitor is held to confer jurisdiction on the Court within whose jurisdiction the branch office is situate, it my lead to undue harassment of the Defendants who may be residing or working for gain at some far off place.

(vii) The Plaintiff has, despite the provisions of Section 62(2) of the Copyright Act which entitle the Plaintiff to file the plaint at the place of his residence, that is, at Mumbai, chosen to file the suit in this Court and not at Mumbai. This ought not to be countenanced by the Court as it is with a view to cause undue harassment to the Defendants, all of whom reside and carry on work at Mumbai.

(viii) The Plaintiffs Directors, namely Mr. V.P. Singh, Mr. P.K. Shekhar and Ms. Rajeshwari Shekhar, it is not in dispute, reside and work for gain at Mumbai. Notwithstanding, the said suit is being prosecuted at New Delhi just so as to harass the Defendants knowing fully well that this Court does not have the jurisdiction to entertain the suit.

(ix) On principles of forum conveniens, this Court ought no to exercise jurisdiction as the parties reside, carry on business and personally work for gain at Mumbai. The entire material software as well as documentation is available at Mumbai and all the witnesses are at Mumbai. As such, the Mumbai Court would be the more appropriate Court to decide the case. This is evident from the fact that on appointment of Local Commissioners by this Court, the Local Commissioners chose to go to Mumbai alone, which shows that the cause of action had accrued at Mumbai and no part of the cause of action arose at Delhi.

38. Learned Counsel for the Defendants in support of the contention that primacy has to be given to the place where the cause of action has substantially, materially and pre-eminently arisen, from amongst other places where it has incidentally, inconsequentially or partially arisen, relied upon a plethora of judgments, to some of which I propose to advert.

39. In Union of India and Anr. v. Oswal Woollen Mills Ltd. and Ors. : (1984) 2 SCC 646 [LQ/SC/1984/93] , the Apex Court after noticing that in the said case though the registered office of the Company was at Ludhiana and the principal Respondents against whom primary relief was sought were at New Delhi, the writ Petitioners had chosen the Calcutta High Court as the forum, (merely because one of the interlocutory reliefs which was sought was in respect of a consignment of beef tallow which had arrived at the Calcutta Port), observed as follows: (SCC page-648, para-2):

We do not desire to probe further into the question whether the writ petition was filed by design or accident in the Calcutta High Court when the office of the Company is in the State of Punjab and all the principal Respondents are in Delhi. But we do fell disturbed that such writ petitions are often deliberately filed in distant High Courts, as part of a manoeuvre in a legal battle, so as to render it difficult for the officials at Delhi to move applications to vacate stay where it becomes necessary to file such applications.

40. In State of Rajasthan and Ors. v. M/s. Swaika Properties and Anr. : 1985 (3) SCC 217 [LQ/SC/1985/115] , the Supreme Court held that cause of action is the bundle of facts which gives the Plaintiff a right to relief against the Defendant; and mere service of notice at the registered office of a Company does not give rise to a cause of action within that territory unless service of such notice was an integral part of the cause of action: (SCC page 223, para 8)

8. The expression cause of action is tersely defined in Mullas Code of Civil Procedure:

The cause of action means every fact which, if traversed, it would be necessary for the Plaintiff to prove in order to support his right to a judgment of the Court.

In other words, it is a bundle of facts which taken with the law applicable to them gives the Plaintiff a right to relief against the Defendant. The mere service of notice under Section 52(2) of theon the Respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating the acquisition of the land under Section 52(1) of thearose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench....... If the Respondents felt aggrieved by the acquisition of their land situate at Jaipur and wanted to challenge the validity of the notifications issued by the State Govt. of Rajasthan under Section 52(1) of theby a petition under Article 226 of the Constitution, the remedy of the Respondents for grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench where the cause of action wholly or in part arose.

41. In the case of Oil and Natural Gas Commission v. Utpal Kumar Basu : (1994) 4 SCC 711 [LQ/SC/1994/575] , where certain works were to be executed at Hazira in the State of Gujarat and the contractor challenged the action of ONGC in rejecting its tender before the Calcutta High Court by way of a writ petition, a three-Judge Bench of the Supreme Court while setting aside the impugned decision of the Calcutta High Court which had entertained the writ petition, observed as follows: (SCC P. 719, Para 8):

From the facts pleaded in the writ petition, it is clear that NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to NICCO, it became aware of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates subsequently. When it learnt that it was considered ineligible it sent representations, including fax messages, to EIL, ONGC, etc. at New Delhi, demanding justice. As stated earlier, the Steering Committee finally rejected the offer of NICCO and awarded the contract to CIMMCO at New Delhi on 27.1.1993. 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. Besides the fax message of 15.1.1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27.1.1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court.

At page 722 of the Report, the Supreme Court further observed:

13. The submission of the learned Counsel for NICCO based on Section 21 of the Code of Civil Procedure that even if this Court comes to the conclusion that the High Court of Calcutta had no jurisdiction, this Court should, in the absence of proof of prejudice, refuse to interfere with the decision of the High Court unless it is otherwise found to be erroneous. While the spirit of Section 21 of the Code of Civil Procedure may support such a submission, we are afraid, the discretion cannot be used in favour of a party which deliberately invokes the jurisdiction of a Court which has no jurisdiction whatsoever for ulterior motives. That would only encourage such type of litigation. The object underlying the provision in Section 21 is not to encourage such litigants but to avoid harassment to litigants who had bona fide and in good faith commenced proceedings in a Court which is later found to be wanting in jurisdiction. In the instant case, we are convinced beyond doubt, that NICCO did not act bona fide in moving the Calcutta High Court and, therefore, the submission based on Section 21 must fail.

42. In South-East Asia Shipping Co. Ltd. v. Nav Bharat Enterprises Pvt. Ltd. and Ors. : (1996) 3 SCC 443 [LQ/SC/1996/583] reiterated that primary has to be given to the place where the cause of action has in fact arisen. Cause of action must include some act done by the Defendant which gives the Plaintiff the right to claim relief. In that case, the Respondents had filed a suit on the original side of the Delhi High Court for perpetual injunction against the Appellant from enforcing a bank guarantee executed at Delhi and transmitted for performance to Bombay. The admitted position was that the contract was executed at Bombay and performance of the contract was also to be carried out in Bombay. In an appeal by Special Leave, the Supreme Court relying upon a judgment in ABC Laminart v. A.P. Agancies AIR : 1989 (2) SCC 163 [LQ/SC/1989/152 ;] ">1989 (2) SCC 163 [LQ/SC/1989/152 ;] [LQ/SC/1989/152 ;] held as follows (SCC page - 444-445, paras 3 and 4):

3. It is settled law that cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a Court of law. The cause of action means, therefore, every fact, which if traversed, it would be necessary for the Plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the Plaintiff a right to claim relief against the Defendant. It must include some act done by the Defendant since in the absence of such an act no cause of action would possibly accrue or would arise. In view of the admitted position that contract was executed in Bombay, within the jurisdiction of the High Court of Bombay, performance of the contract was also to be done within the jurisdiction of the Bombay High Court; merely because bank guarantee was executed at Delhi and transmitted for performance to Bombay, it does not constitute a cause of action to give right to the Respondent to lay the suit on the original side of the Delhi Court. The contention that the Division Bench was right in its finding that since the bank guarantee was executed and liability was enforced from the bank at Delhi, the Court got jurisdiction, cannot be sustained.

43. Conversely, Fry L.J. Read v. Brown (1888) 22 QB 128 defined cause of action as:

Everything which, if not proved, gives the Defendant an immediate right to judgment must be part of the cause of action.

44. In Rajasthan High Court Advocates Association v. Union of India and Ors. : (2001) 2 SCC 294 [LQ/SC/2000/2075] , the Apex Court emphasised that it was the infraction of the right or the immediate occasion for the action which was the necessary constituent of "cause of action" and determined the place where the "cause of action" arise: The following observations of the Supreme Court are apposite: (SCC page-304, para 17)

The expression "cause of action" has acquired a judicially-settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself.

Compendiously the expression means every fact which it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action". It has to be left to be determined in each individual case as to where the cause of action arises.

45. In National Textiles Corporation Ltd. v. Haribox Swalram and Ors. : (2004) 9 SCC 786 [LQ/SC/2004/478] , the textile mills were situate in Bombay and the supply of cloth was to be made by them ex-factory at Bombay and the alleged payment by the writ Petitioners was also made at the said place. The learned Single Judge after a detailed discussion of the matter held that the Calcutta High Court had no jurisdiction to entertain the writ petition. The Division Bench reversed this finding on the ground that the concluded contract had come into existence which could be cancelled only after giving an opportunity of hearing and consequently, the question of revocation of the contract at its Calcutta address would constitute the cause of action. The Apex Court after referring to its earlier decision in the ONGC case (supra) held as follows: (SCC page 797, para-12.1)

As discussed earlier, mere fact that the writ Petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta, is not an integral part of cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view taken by the Division Bench cannot be sustained. In view of the above findings, the writ petition is liable to be dismissed.

46. In Union of India and Ors. v. Adnani Exports Ltd. and Anr. : (2002) 1 SCC 567 [LQ/SC/2001/2506] , while explaining the principle that registered office of a company within the territorial jurisdiction of the Court would not ipso facto give a cause of action to that Court, the Supreme Court reiterated the principle that the entire facts pleaded would determine the cause of action and not merely the happening of an inconsequential event that would determine the cause of action. At page 573 of the Report, the Apex Court observed as follows:

17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the Court to decide a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the Respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Courts territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned.

47. In Sector Twenty-one Owners Welfare Association v. Air Force Naval Housing Board and Ors., 65 (1997) DLT 81 (DB), a Division Bench of this Court held that a trivial o insignificant part of the cause of action arising at a particular place would not be enough to confer jurisdiction on the Court to entertain the lis. The Division Bench deduced from various precedents that the emphasis had shifted from the residence or location of the person or authority sought to be proceeded against, to the situs of the accrual of cause of action. In paragraphs 13 and 14 of its Report, the Bench held as follows:

13. The law as reflected by the abovesaid decisions is that the emphasis has shifted from the residence or location of the person or authority sought to be proceeded against to the situs of the accrual of cause of action wholly or in part. It is also clear that a trivial or insignificant part of the cause of action arising at a particular place would not be enough to confer writ jurisdiction; it is the cause of action mainly and substantially arising at a place which would be determinating factor of territorial jurisdiction. So also it shall have to be kept in view who are the real persons or authorities sought to be proceeded against or against whom the writ to be issued by the Court would run. Joining of proforma or ancillary parties, and certainly not the joining of unnecessary parties, would be relevant for the purposes of Article 226(1).

14. Reverting back to the case at hand, it is clear that the cause of action has wholly arisen in NOIDA within the State of U.P. The principal and substantial grievance of the Petitioner-association is against the Respondent Nos. 2 and 3 though incidentally, the Respondent No. 1 may also be required to be bound by the writ. The reverse is not correct. The writ, if any, to be issued by the Court a would not serve any purpose if issued against Respondent No. 1 alone. In the matter of registration of the sale deed-cum-sub-lease deed merely because a document can be registered at Delhi by virtue of Section 30(2) of the Registration Act, territorial jurisdiction in the Courts at Delhi cannot be inferred. Moreover, Petitioner-association is already having some litigations before the Court of U.P. and at one point of time the Delhi High Court had declined to entertain the Petitioner-associations writ for want of territorial jurisdiction in Delhi.

48. Relying upon the aforesaid judgment of the Division Bench, a learned Single Judge of this Court in Indo Gulf Explosives limited and Anr. v. U.P. State Industrial Development Corporation and Anr. : 78 (1999) DLT 320 [LQ/DelHC/1999/483] , held that where the cause of action has substantially and materially arisen in the State of Uttar Pradesh, this Court will not assume jurisdiction under Article 226 of the Constitution. It was observed that the factors that the registered office of the first Petitioner is in Delhi and the impugned communications were sent to the registered office at Delhi merely determine the location of the first Petitioner, but it does not detract from the fact that the failure to comply with the impugned communications has consequence at a place where the land is located and the factory has been set up, viz. at Uttar Pradesh.

49. In Spiliada Maritime Corpn. v. Cansulex Ltd. (1986) 3 All ER 843 the House of Lords laid down the following principles: (All ER page 844)

(1) The fundamental principle applicable to both the stay of English proceedings on the ground that some other forum was the appropriated forum and also the grant of leave to serve proceedings out of the jurisdiction was that the Court would choose that forum in which the case could be tried more suitably for the interests of all the parties and for the ends of justice (see p 846 c d, p 847 a to c, p 853 d e and p 854 j. post); dictum of Lord Kinnear in Sim v. Robinow (1892) 19 R (Ct of Sess) 665 applied; Societe du Gaz de Paris v. SA de Navigation Les Armateurs Francais 1926 SC (HL) 13 considered.

(2) In the case of an application for a stay of English proceedings the burden of proof lay on the Defendant to show that the Court should exercise its discretion to grant a stay. Moreover, the Defendant was required to show not merely that England was not the natural or appropriate forum for the trial but that there was another available forum which was clearly or distinctly more appropriate than the English forum. In considering whether there was another forum which was more appropriate the Court would look for that forum with which the action had the most real and substantial connection, e.g. in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction, and the places where the parties resided or carried on business. If the Court concluded that there was no other available forum which was more appropriate than the English Court it would normally refuse a stay. If, however, the Court concluded that there was another forum which was prima facie more appropriate the Court would normally grant a stay unless there were circumstances militating against a stay, e.g. if the Plaintiff would not obtain justice in the foreign jurisdiction (see p 846 c d, p 847 a to c, p 854 j, p 855 h j and p 856 a to e, post); Societe du Gaz de Paris v. SA de Navigation Les Armateurs Francais 1926 SC (HL) 13, The Atlantic Star, (1973) 2 All ER 175, MacShannon v. Rockware Glass Ltd. (1978) 1 All ER 625 and The Abidin Daver, (1984) 1 All ER 470 considered.

50. In Modi Entertainment Network and Anr. v. W.S.G. Cricket PTE Ltd. : (2003) 4 SCC 341 [LQ/SC/2003/80] , the Apex Court relying upon the Spiliada case (supra) culled out the following principle of law:

(SCC page 360, para 24) "In a case where more forums than one are available, the Court in exercise of its discretion to grant anti-suit injunction will examine which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexations or in a forum non-conveniens.

51. In a landmark judgment, a three-Judge Bench of the Supreme Court in the case of Kusum Ingots and Alloys Ltd. v. Union of India and Anr. : (2004) 6 SCC 254 [LQ/SC/2004/631] , after considering the entire gamut of case law, laid down the touchstone for conferment of jurisdiction on the Court: (SCC, page 261 para 18)

The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.

52. Observing that the expression "cause of action" is not defined in any statute, the Apex Court in Kusum Ingots (supra) emphasized that the material facts which are imperative for the suiter to allege and prove constitute the cause of action; and that the expression "material facts" is also known as integral facts. The Court held that even if it was found that a part of the cause of action has arisen within the jurisdiction of Court, on the principle of forum conveniens, the Court may refuse the exercise its discretionary jurisdiction. In the penultimate paragraph of its judgment, the Apex Court issued the following reminder: (SCC page 264, para 30)

30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. (See Bhagat Singh Bugga v. Dewan Jagbir Sawhney (: AIR 1941 Cal 670 [LQ/CalHC/1941/19] ), Madanlal Jalan v. Madanlal (AIR 1949 Cal 495 [LQ/CalHC/1945/30] ), Bharat Coking Coal Ltd. v. Jharia Talkies and Cold Storage (P) Ltd. (1999 CWN 122), S.S. Jain and Co. v. Union of India (1994) 1CHN 445 and New Horizons Ltd. v. Union of India (AIR 1994 Del 126 [LQ/DelHC/1993/680] ).

53. I would be failing in my duty if I do not notice at this juncture two submissions raised by Shri V.P. Singh, learned Senior Counsel appearing for the Plaintiff:

(1) The litigant has the right to go to a Court where part of his cause of action arises. In such a situation it would be open to the litigant who is the dominus litis to have his forum conveniens (Nasiruddin v. S.T.A. Tribunal : AIR 1976 SC 331 [LQ/SC/1975/312] and U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow v. State of U.P. and Ors. : AIR 1995 S.C. 2148).

(2) The principle laid down by the Supreme Court in the case of Kusum Ingots (supra) that in appropriate cases the High Court may refuse to exercise discretionary jurisdiction by invoking the doctrine of forum conveniens, has no" applicability in suit. These observations were clearly in the context of Article 226 of the Constitution as the Court exercises extraordinary jurisdiction in writ petitions and it is trite that the jurisdiction under Article 226 is discretionary. That would not be the position were a suit is filed and it is established that even a part of the cause of action has arisen within the territorial jurisdiction of a Court. There would then be no question of refusing to exercise jurisdiction (L.G. Corporation and Anr. v. Intermarket Electroplasters (P) Ltd. and Anr. 2006 (32) PTC 429 (Del).

54. Adverting first to the contention raised on behalf of the Plaintiff that the litigant who is the dominus litis has the right to go to the Court where part of his cause of action arises, the decisions of the Apex Court in Nasiruddins case and the U.P. Rashtriya Chini Mill Adhikari Parishad case (supra) wherein it was so laid down, were extensively discussed in the case of Kusum Ingos and Alloys. In the letter case, as already stated, the Apex Court after considering all the earlier decisions, laid down that even if a small fraction of cause of action accrues within the jurisdiction of a High Court, the said High Court will have jurisdiction in the matter, but in appropriate cases it may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. Overruling the view taken in U.P. Rashtriya Chini Mill case as incorrect, the Apex Court went on to hold that the framing of a statue, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a Court only because of the situs of the office of the maker thereof Passing of a legislation by itself does not confer any right to file a writ petition unless a cause of action arises therefor. It is not every fact pleaded by the litigant that gives rise to a cause of action and only such facts as are necessary to adjudicate upon the lis would constitute a cause of action conferring territorial jurisdiction upon a Court.

55. In view of the aforesaid, in my view, quite clearly, the Court in appropriate cases may refuse to exercise its jurisdiction by invoking the doctrine of forum conveniens particularly in a case where the proceedings are in a forum which is "oppressive or vexatious to the Defendant or in a forum non-conveniens" (See Modi Entertainment Network (supra)).

56. Dealing next with the contention of the Plaintiffs counsel that the doctrine of forum conveniens has no application to suit proceedings and is confined in its applicability to writ proceedings, in may view, the issue has been laid to rest by the Apex Court in-the case of Kusum Ingots itself. While dealing with the question as to whether the High Court of Delhi would have the requisite territorial jurisdiction to entertain the writ petition, the Supreme Court referred to the provisions of Article 226(2) of the Constitution of India as also Section 20(c) of the Code of Civil Procedure. The said provisions are apposite and are being reproduced hereunder. Empahssis has been added by me. Clause (2) of Article 226 of the Constitution of India reads thus:

226. (2) The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."

Section 20(c) of the Code of Civil Procedure reads as under:

20. Other suits to be instituted where Defendants reside or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-

(a)-(b) ***

(c) the cause of action, wholly or in part, arises.

After setting out the said provisions, the Supreme Court held as follows: (SCC page 259, para 9)

Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) Code of Civil Procedure shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the Petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts.

57. In view of the above, the contention of the Plaintiff that the doctrine of forum conveniens is limited in its applicability to writ petitions, in my considered view, cannot be countenanced. I am fortified in coming to this conclusion from the judgments of this Court.

58. In Ansal Buildwell Ltd. v. North Eastern Indira Gandhi Institute of Health and Medical Sciences : 118 (2005) DLT 274 [LQ/DelHC/2005/766] which was a suit arising out of the Defendant invoking the bank guarantee, a learned Single Judge of this Court held as follows: (DLT page 280, para 24)

In the context of forum conveniens it may be noted that in an appropriate case, a Court may refuse to exercise its discretionary jurisdiction by invoking the said doctrine. While invoking the doctrine of forum conveniens a Court may refuse to exercise its discretionary jurisdiction notwithstanding that some part of the cause of action has arisen within the territorial jurisdiction of the Court.

59. In Sri Ganesh Research Institute v. Union of India and Ors. : 115 (2004) DLT 410 [LQ/DelHC/2004/727] , another Single Judge of this Court while considering a petition under Section 9 of the Arbitration and Conciliation Act, 1996, observed as follows: (DLT page 411, para 3)

It is too late in the day to contend that merely because the Union of India has its headquarters in Delhi, Courts located in the Capital could properly exercise jurisdiction over every dispute where it has been impleaded as a party. Assuming for the sake of argument that a part of the cause of action has arisen in New Delhi, I am still of the considered opinion that this Court should abjure from exercising jurisdiction since there are other Courts which are better suited to entertain the disputes that have been raised in this petition (see Mrs. Gupta Sanitary Stores v. Union of India and Anr. : AIR 1985 Del 122 [LQ/DelHC/1984/431] ). In paragraph 7, the Court further held as follows:

7. An analysis of the various pronouncements of the Honble Supreme Court reveals that even though the express terms of Section 20 of the CPC permit the filing of a suit against a Corporation at its principal office, pre-eminence has been accorded to the place where the cause of action had substantially arisen, from amongst those places where it has incidentally or partially arisen. Whilst the Supreme Court has indubitably enumerated in ABC Laminart v. A.P. Agencies : AIR 1989 SC 1239 [LQ/SC/1989/152 ;] ">AIR 1989 SC 1239 [LQ/SC/1989/152 ;] [LQ/SC/1989/152 ;] : 1989 (2) SCC 163 [LQ/SC/1989/152 ;] ">1989 (2) SCC 163 [LQ/SC/1989/152 ;] [LQ/SC/1989/152 ;] , the several places where the cause of action could be seen to have arisen, this was done primarily to investigate and determine whether the place to which jurisdiction had been restricted by ousting all others itself enjoyed jurisdiction. The position that obtains today is that primacy is accorded to the place where the cause of action substantially arises.

60. In Blacks Law Dictionary, Eighth Edition, page 680, the term forum non-conveniens has been delineated as follows:

Term refers to discretionary power of Court to decline jurisdiction when convenience of parties and ends of justice would be better served if action were brought and tried in another forum. Johnson v. Spider Staging Corporation 87 Wash.2d 577, 555 P.2d 997, 999,1000. See 28 U.S.C.A. 1404. The rule is an equitable one embracing the discretionary power of a Court to decline to exercise jurisdiction which it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere. Leet v. Union Pac. R. Co. 25 Cal.2d 605,155 P.2d 42, 44. The doctrine presupposes at least two forums in which the Defendant is amenable to process and furnishes criteria for choice between such forums. Wilson v. Seas Shipping Co. D.C. Pa., 78 F. Supp. 464, 465. In determining whether doctrine should be applied, Court should consider relative each of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses cost of obtaining attendance of willing witnesses, possibility of view of premises, and all other practical problems that make trial easy, expeditious and inexpensive. Di Lella v. Lehigh Val. R. Co. D.C.N.Y., 7 F.R.D. 192,193. See also Change of venue; Forum conveniens.

61. In view of the aforesaid, though, in my considered opinion, this Court is not the appropriate forum for the trial of the present suit and the doctrine of forum non-conveniens is squarely attracted, I do not propose to dwell any further on this issue for the reason that even otherwise, in my view, the mere fact that one of the branch offices of the Defendant No. 3 is located at Delhi would not ipso facto confer jurisdiction on this Court. As stated above, no cause of action, much less a substantial or integral part of the cause of action, has arisen within the territorial jurisdiction of this Court. The case of the Plaintiff in nutshell is that the software, KENSOFT SYSTEM, contractually loaned to the Defendant No. 3 by the Plaintiff has been hacked into by the Defendants 1 and 2 in collusion with the Defendant No. 3, and is being made available to third parties by the Defendants 1 and 2, repackaged as Home Loan Express. There is not a whisper in the plaint that the aforesaid hacking/infringement was carried out by the Defendants 1 to 3 within the territorial jurisdiction of this Court. Defendant No. 3 happens to have 23 subordinate offices all over India, including one at Delhi. It will be too far-fetched to argue that the location of subordinate offices of one of Defendants, per se, will vest jurisdiction in Courts all over India, particularly in the absence of any specific averment made by the Plaintiff relating to any act of infringing the rights of the Plaintiff.

62. In Patel Roadways Limited, Bombay v. Prasad Trading Company : (1991) 4 SCC 270 [LQ/SC/1991/361] , the Supreme Court, while discussing the scope and ambit of Section 20(c) Explanation, held that where the Defendant company has a principal office at one place and a subordinate office at another place and the cause of action had arisen at the subordinate office, that Court alone will have jurisdiction and not where the principal office of the Defendant is situate. In the instant case, the principal offices of the Defendants 1 to 3 are at Mumbai and the cause of action has also wholly accrued at Mumbai. The location of the subordinate office of Defendant No. 3 at Delhi ipso facto cannot vest this Court with territorial jurisdiction to decide the suit. Even the leave of Court to sue the Defendants 1 and 2 at Delhi, as envisaged by the provisions of Section 20(b) of the Code, has not been sought for by the Plaintiff. The attempt of the Plaintiff to invoke the jurisdiction of this Court apparently is a deliberate attempt to invoke the jurisdiction of the Court where none is vested in the Court, and that too in a case where the provisions of Section 62 of the Copyright Act provide an additional forum to the Plaintiff at Mumbai.

63. In the aforesaid circumstances, the plea raised by way of demurrer by the Defendants that this Court has no territorial jurisdiction to entertain the present suit succeeds. The plaint of the Plaintiff is ordered to be returned for presentation before the Court of competent jurisdiction and the date of pronouncement of the order shall be the date of intimation to the Plaintiff in this regard. All intmerim orders stand vacated.

64. Accordingly, IA Nos. 8306/2006, 9153/2006, 9497/2006 and 10294/2006 and CS(OS) No. 1493/2006 stand disposed of in the above terms.