:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION LEAVE LEAVE LEAVE PETITION NO. 814 OF 2008 PETITION NO. 814 OF 2008 PETITION NO. 814 OF 2008 IN IN IN SUIT SUIT SUIT (LODG.) NO. 3880 OF (LODG.) NO. 3880 OF (LODG.) NO. 3880 OF 2008 2008 2008 Inorbit Malls (India) Pvt.Ltd. & Anr. ... Plaintiffs. V/s. Kolte Patil Developers Limited. ... Respondents. Mr. Simil Purohit with Ms. Suruchi Rungta i/b. Khaitan & Co. for the Plaintiffs. Mr. G.S. Godbole for the Respondents. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 04TH 04TH 04TH FEBRUARY 2009. FEBRUARY 2009. FEBRUARY 2009. P.C. P.C. P.C. : : : . This is an application for leave under Clause XIV of the Letters Patent. 2. The Plaintiffs seek to apply for this leave by combining the causes of action as more particularly stated in the Leave Petition. The two Plaintiffs, who have instituted this Suit for protection of their rights claim that Section 134(1) of the Trade Marks Act, 1999 so also Clause XIV of the Letter Patent contemplate that the causes of action with regard to infringement of a registered trade mark or relating to any right in the registered trade mark or for passing off arising out of the use by the Defendant of any of such Trade Mark which is identical with or deceptively similar to the :2: Plaintiffs’ Trade Mark, whether registered or un-registered, can be combined provided the Suit is not for land and other immovable property and further, other conditions stipulated by Clause XIV are satisfied. In other words, if the Suit is not for land or other immovable property and the High Court has jurisdiction in respect of one of such causes of action, then, the leave can be granted. 3. It is contended by Mr. Purohit, learned Advocate appearing for the Plaintiffs/Petitioners that they are combining the causes of action, namely, of passing off with the cause of action for infringement of registered Trade Marks. It is contended that the conditions stipulated by both provisions are satisfied and therefore, leave be granted. 4. On the other hand, Mr. Godbole, learned Advocate appearing for the Defendants submits that this Court has no territorial jurisdiction to entertain and try this Suit. The second contention is that Clause XIV of the Letters Patent does not contemplate two Plaintiffs coming in and applying for leave under Clause XIV of the Letters Patent. The provision is clear inasmuch as it speaks of a sole Plaintiff. Therefore, the leave should not be granted. Apart from that, it is contended that the Defendants are in the business of developing properties. He submits that the Defendants/Respondents are not :3: developing the property in question. The property is being developed by the owner through its developer. The name of the Defendants/Respondents is included for the sake of convenience. Similarly, on the basis of some entry in the brochure, the Suit could not have been filed. 5. I have perused the Leave Petition and the reply. I have also perused the relevant provisions. In my view, the issues that are raised in the affidavit in reply and more particularly paragraph 4 thereof, touch the merits of the controversy and it is not necessary to go into them at this stage. 6. From a perusal of Clause XIV and Section 134 of the Trade Marks Act, 1999, I am satisfied that the Plaintiffs can seek leave under Clause XIV in the present case. The conditions stipulated by both provisions are admittedly satisfied. The question of territorial jurisdiction of this Court is not being conclusively decided. Today, at the stage of leave under Clause XIV what the Court is concerned with is joining of several causes of action. It is clear from a perusal of the Petition that as far as the cause of action is concerned, it is being pursued by both Plaintiffs having their business in Bombay. The reasons for seeking leave are pointed out in para 3 of the Petition, which are not disputed by the Defendants/Respondents. Leave can be granted to avoid multiplicity of proceedings. Similarly, as far as two :4: Plaintiffs joining in and applying for leave is concerned, from a perusal of Section 134(2) even that aspect is clear. Therefore, without going into the issue of this Court’s territorial jurisdiction and the merits of the controversy but considering that the conditions stipulated by Clause XIV and Section 134 are satisfied, then, leave can be granted. 7. Accordingly, the leave petition is made absolute in terms of prayer clause (a). The leave is granted subject to all pleas as far as the territorial jurisdiction and merits being kept open. Equally, this order does not conclude the issue of non-joinder of parties raised by the Defendants/Respondents in their affidavit in reply. 8. At this stage, Mr. Godbole prays for stay of this order for a period of four weeks to enable the Respondent to challenge it further. The request is opposed by Mr. Purohit and he submits that stay be granted only if the Respondents agree not to use the mark. 9. In my view, all that has been granted is leave under Clause XIV of the Letters Patent by applying settled principles laid down in the two Division Bench decisions of this Court and other Single Judge’s Judgments and Orders. Further, in the light of the clarification given, I do not see any prejudice to the Respondents/Defendants. Merely because the leave is granted, the Respondents are :5: not precluded from challenging the order in the higher Court and subject to such challenge the Respondents/Defendants can participate in the Suit and other proceedings. Hence, the request is refused. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)