CS (OS) 152/07 M/s Shri Krishan Industries vs. Kimti Lal Sharma & Anr Page 1 Of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: January 29, 2008 Date of Order: February 11, 2009 + CS(OS) 152/2007 & IA No.8760/2007 % 11.02.2009 M/s Shri Krishan Industries ...Plaintiff Through: Mr. Sanjeev Singh, Advocate Versus Kimti Lal Sharma & Another ...Defendants Through: Mr. Manav Kumar with Mr. Sushant Singh, Advocates JUSTICE SHIV NARAYAN DHINGRA 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether judgment should be reported in Digest? JUDGMENT 1. This suit has been filed by the plaintiff under Sections 134 and 135 read with Section 27(2) of the Trademark Act and under Section 51 of the Copyright Act praying inter alia that the defendants/its directors/agents/partners be restrained from infringing, directly or indirectly, the trademark of the plaintiff namely SKI or SKI LABLE for their goods and they should also be restrained from using any other trademark identical or deceptively similar to that of the plaintiff’s trademark and from passing off their goods as those of the plaintiff. The other prayer made by the plaintiff is that the defendant be ordered to deliver up all goods bearing similar or deceptively similar trademark as that of the plaintiff of packing materials, cartons, broachers, stickers etc having trademark similar or deceptively similar to that of the CS (OS) 152/07 M/s Shri Krishan Industries vs. Kimti Lal Sharma & Anr Page 2 Of 4 plaintiff. It is also prayed that the defendant be directed to render the accounts of its trade activities and should be restrained from disposing of or dealing the assets as its own manufacturing units and premises viz 149, Amar Garden, Preet Nagar, Jalandhar – 144 004 or other assets not known to the plaintiff. Plaintiff has also claimed damages of Rs.20,05,000/-. 2. The title of the plaint shows that the plaintiff was located at Phagwara in Punjab and the defendant was located in Jalandhar in Punjab. The jurisdiction of this Court has been invoked by the plaintiff on the ground that the defendant was selling and marketing its goods in Delhi and soliciting trade and business from Delhi and other parts of the country and the defendant has filed the trademark application in the office of Registrar of Trade Mark, Delhi and defendant has obtained registration of its trademark on all India basis including Delhi. It is also stated that the plaintiff was selling its goods in Delhi under the impugned trademark and has goodwill and reputation about this trademark in Delhi which is being tarnished by the defendants. 3. Since the plaintiff is not residing or working for gain in Delhi neither the defendant was residing or working for gain in Delhi, the provisions of Section 134(2) of the Trademark Act or under Section 62(2) of the Copyright Act or Section 20(a), (b) CPC could not be pressed into service by plaintiff for invoking jurisdiction of this Court. The only thing to be seen is whether territorial jurisdiction of this Court can be invoked on the ground that the goods of the plaintiff or defendants were being sold in Delhi. The plaintiff has not given the CS (OS) 152/07 M/s Shri Krishan Industries vs. Kimti Lal Sharma & Anr Page 3 Of 4 name of any shop or place in Delhi where the goods of the defendants were being sold and the trademark of the plaintiff was being infringed. Except making vague and bald averments that the goods of the defendants were being sold in Delhi, without giving any particular in support of its averments and without placing on record any bill of purchasing goods of defendants in Delhi, the territorial jurisdiction of this Court has been invoked. 4. The plaintiff who is a resident of Phagwara, Punjab could have filed this suit in Punjab i.e. Jalandhar where the defendants are carrying on their business. Invocation of jurisdiction of this Court on the basis of vague allegations that the goods of defendants were being sold throughout the country including Delhi makes no sense. No cause of action can be said to have been arisen in Delhi. Such bald allegations of sale can be made against any person without any foundation and plaintiff even during trial can always escape giving proof of such averments on the ground that he has not stated in the plaint that the sale was being made at some shop or through bills. The Courts cannot be used as a tool to put a heavy burden of litigation at a far off place on the defendant so that the defendant is even unable to defend the suit. 5. In this case, it is admitted by the plaintiff that the defendant was a registered owner of the trademark being used by the defendant. No case for infringement of trademark is made out against the defendants, in view of provisions of Section 28(3) and 29 of the Trademark Act. CS (OS) 152/07 M/s Shri Krishan Industries vs. Kimti Lal Sharma & Anr Page 4 Of 4 6. Thus the claim of the plaintiff against the defendants can be at the most of passing off and in case of passing off, the law is now well settled in view of the Supreme Court’s judgment in Dodha House v. SK Maingi, (2006) 9 SCC 41 wherein the Supreme Court laid down that it was possible that the goods manufactured by the plaintiff were available in the markets in Delhi or they are sold in Delhi, but that by itself would not mean that the plaintiff carries on any business in Delhi. 7. In view of above facts and the settled legal position, I consider that this Court has no territorial jurisdiction to entertain the instant suit and the plaint is liable to be returned to the plaintiff to be filed at the Court of appropriate territorial jurisdiction. It is ordered accordingly. February 11 , 2009 SHIV NARAYAN DHINGRA J. rd