Case: Indian Performing Rights Society Ltd Vs. Sanjay Dalia

v. C.R. Borman & Anr. [2008 (38) PTC 76 (Del.)], Delhi High Court considered that the plaintiff carried on the business in commercial quantities in Delhi and have authorized agents also. The pleadings of plaintiff have to be taken into consideration at the time of rejection of the plaint under Order VII Rule 11 CPC. It was observed on averments made that the Delhi High Court possessed territorial jurisdiction to entertain the suit as plaintiff carried on business at Delhi.(e) In Sap Aktiengesellschaft & Anr. v. M/s. Warehouse Infotech [IA No. 11153/2009 in CS(OS) No.623/2009 decided on 19.11.2009], the question came up for consideration whether the plaintiff had a right a file a suit if he carries on business in the territorial jurisdiction of Delhi. The High Court held that in the plaint, jurisdiction was invoked on the ground that the defendants are voluntarily residing and carrying on business at Delhi. The plaintiff has branch office at Delhi and plaintiff’s authorised partner was offering the products from its office at Delhi. The judgment was delivered considering the provisions of Order VII Rule 10, C.P.C. taking the plaint averments to be correct.(f) In Wipro Ltd. & Anr. v. Oushadha Chandrika Ayurvedic India (P) Ltd. & Ors. [2008 (37) PTC 269 Mad.] , the High Court at Madras has observed that the provisions of section 20 CPC are not applicable as far as the High Court at Madras is concerned. Therefore, the scope of section 62 of the Copyright Act and section 134 of the Trade Marks Act, cannot be curtailed by reference to section 20 CPC or clause 12 of the Letters Patent.(g) In Hindustan Unilever Ltd. v. Ashique Chemicals & Ors. [2011 (47) PTC 209 (Bom.)] , the Bombay High Court has dealt with the territorial jurisdiction and held that section 134 of the Trade Marks Act conferred upon the plaintiff the benefit of bringing an action stipulated therein notwithstanding the provisions of the Code of Civil Procedure or any other law.(h) In the case of Ultra Tech Cement Ltd. & Anr. v. Shree Balaji Cement Industries & Ors. [2014 (58) PTC 1 (Bom.)] , the High Court held that it has the jurisdiction as the plaintiff carries on business within the jurisdiction of the court and plaintiff No.1 has registered office and plaintiff No.2 has corporate office within the jurisdiction of the said court, though the defendants did not carry on business nor do they have place of business within the jurisdiction of that court. The facts of the instant cases and the question posed is different which did not come up for consideration in any of the aforesaid decisions rendered by the High Courts and even otherwise any observations in any of aforesaid decisions contrary to our decision cannot hold the field. Interpretation of provisions cannot be so wide so as to open it to be misused, it has to be subject to object of the Act as explained above. 43. Coming to submission that vires of Section 62 has not been questioned. There is no doubt about it that the challenge to the vires of section 62 has not been made. However, the question is that of interpretation and not that of vires of the provisions which has been considered by us. There will be no violence to section 62 of Copyright Act and section 134 of Trade Marks Act by the interpretation adopted by us and the right of the plaintiff which has been conferred under the provisions, also remains intact. There is no question of giving disadvantage to the plaintiff vis-a-vis the defendant but both will stand to gain by proper interpretation.44. We also find the submission to be futile that the law as to the otherwise on the basis of aforesaid decisions, has prevailed for a long time as such there should not be any interference. Firstly, the judgments are of recent origin. Even otherwise, we have considered each and every decision threadbare which has been referred to us. It cannot be said that the precise question involved in the cases before us was involved in the aforesaid decisions or came up for consideration. In Dhodha House (supra) also, the question posed for consideration was different and the observations made therein are not supporting the cause raised on behalf of the appellants. We are not taking a view contrary to any of the said decisions of this Court. Thus, there is no need to refer the case to a larger Bench.45. It was also submitted that as the bulk of litigation of such a nature is filed at Delhi and lawyers available at Delhi are having expertise in the matter, as such it would be convenient to the parties to contest the suit at Delhi. Such aspects are irrelevant for deciding the territorial jurisdiction. It is not the convenience of the lawyers or their expertise which makes out the territorial jurisdiction. Thus, the submission is unhesitatingly rejected.46. It was also submitted that the suit may be ordered to be transferred to Delhi. We cannot order transfer of suit in these proceedings. In case parties so desire, they are free to file appropriate application but the suit is required to be presented in the court of competent jurisdiction only thereafter the question of transfer would be germane.47. In our opinion, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act have to be interpreted in the purposive manner. No doubt about it that a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain. He need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises. However, if the plaintiff is residing or carrying on business etc. at a place where cause of action, wholly or in part, has also arisen, he has to file a suit at that place, as discussed above.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. Considering the very language of section 62 of the Copyright Act and section 134 of the Trade Marks Act, an additional forum has been provided by including a District Court within whose limits the plaintiff actually and voluntarily resides or carries on business or personally works for gain. The object of the provisions was to enable the plaintiff to institute a suit at a place where he or they resided or carried on business, not to enable them to drag defendant further away from such a place also as is being done in the instant cases. In our opinion, the expressionanything contained in the Code of Civildoes not oust the applicability of the provisions of section 20 of the Code of Civil Procedure and it is clear that additional remedy has been provided to the plaintiff so as to file a suit where he is residing or carrying on business etc., as the case may be. Section 20 of the Code of Civil Procedure enables a plaintiff to file a suit where the defendant resides or where cause of action arose.15. Accrual of cause of action is a sine qua non for a suit to be filed. Cause of action is a bundle of facts which is required to be proved to grant relief to the plaintiff. Cause of action not only refers to the infringement but also the material facts on which right is founded. Section 20 of the CPC recognises the territorial jurisdiction of the courts inter alia where the cause of action wholly or in part arises.arises.16. On a due and anxious consideration of the provisions contained in section 20 of the CPC, section 62 of the Copyright Act and section 134 of the Trade Marks Act, and the object with which the latter provisions have been enacted, it is clear that if a cause of action has arisen wholly or in part, where the plaintiff is residing or having its principal office/carries on business or personally works for gain, the suit can be filed at such place/s. Plaintiff(s) can also institute a suit at a place where he is residing, carrying on business or personally works for gain de hors the fact that the cause of action has not arisen at a place where he/they are residing or any one of them is residing, carries on business or personally works for gain. However, this right to institute suit at such a place has to be read subject to certain restrictions, such as in case plaintiff is residing or carrying on business at a particular place/having its head office and at such place cause of action has also arisen wholly or in part, plaintiff cannot ignore such a place under the guise that he is carrying on business at other far flung places also. The very intendment of the insertion of provision in the Copyright Act and Trade Marks Act is the convenience of the plaintiff. The rule of convenience of the parties has been given a statutory expression in section 20 of the CPC as well. The interpretation of provisions has to be such which prevents the mischief of causing inconvenience to parties.In our opinion, in a case where cause of action has arisen at a place where the plaintiff is residing or where there are more than one such persons, any of them actually or voluntarily resides or carries on business or personally works for gain would oust the jurisdiction of other place where the cause of action has not arisen though at such a place, by virtue of having subordinate office, the plaintiff instituting a suit or other proceedings might be carrying on business or personally works for gain.If the interpretation suggested by the appellant is accepted, several mischiefs may result, intention is that the plaintiff should not go to far flung places than that of residence or where he carries on business or works for gain in order to deprive defendant a remedy and harass him by dragging to distant place. It is settled proposition of law that the interpretation of the provisions has to be such which prevents mischief.Considering the first aspect of aforesaid principle, the common law which was existing before the provisions of law were passed was section 20 of the CPC. It did not provide for the plaintiff to institute a suit except in accordance with the provisions contained in section 20. The defect in existing law was inconvenience/deterrence caused to the authors suffering from financial constraints on account of having to vindicate their intellectual property rights at a place far away from their residence or the place of their business. The said mischief or defect in the existing law which did not provide for the plaintiff to sue at a place where he ordinarily resides or carries on business or personally works for gain, was sought to be removed. Hence, the remedy was provided incorporating the provisions of section 62 of the Copyright Act. The provisions enabled the plaintiff or any of them to file a suit at the aforesaid places. But if they were residing or carrying on business or personally worked for gain already at such place, where cause of action has arisen, wholly or in part, the said provisions have not provided additional remedy to them to file a suit at a different place. The said provisions never intended to operate in that field. The operation of the provisions was limited and their objective was clearly to enable the plaintiff to file a suit at the place where he is ordinarily residing or carrying on business etc., as enumerated above, not to go away from such places. The Legislature has never intended that the plaintiff should not institute the suit where he ordinarily resides or at its Head Office or registered office or where he otherwise carries on business or personally works for gain where the cause of action too has arisen and should drag the defendant to a subordinate office or other place of business which is at a far distant place under the guise of the fact that the plaintiff/corporation is carrying on business through branch or otherwise at such other place also. If such an interpretation is permitted, as rightly submitted on behalf of the respondents, the abuse of the provision will take place. Corporations and big conglomerates etc. might be having several subordinate offices throughout the country. Interpretation otherwise would permit them to institute infringement proceedings at a far flung place and at unconnected place as compared to a place where plaintiff is carrying on their business, and at such place, cause of action too has arisen. In the instant cases, the principal place of business is, admittedly, in Mumbai and the cause of action has also arisen in Mumbai. Thus, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act cannot be interpreted in a manner so as to confer jurisdiction on the Delhi court in the aforesaid circumstances to entertain such suits. The Delhi court would have no territorial jurisdiction to entertain it.Coming to submission that vires of Section 62 has not been questioned. There is no doubt about it that the challenge to the vires of section 62 has not been made. However, the question is that of interpretation and not that of vires of the provisions which has been considered by us. There will be no violence to section 62 of Copyright Act and section 134 of Trade Marks Act by the interpretation adopted by us and the right of the plaintiff which has been conferred under the provisions, also remains intact. There is no question of giving disadvantage to the plaintiffthe defendant but both will stand to gain by proper interpretation.44. We also find the submission to be futile that the law as to the otherwise on the basis of aforesaid decisions, has prevailed for a long time as such there should not be any interference. Firstly, the judgments are of recent origin. Even otherwise, we have considered each and every decision threadbare which has been referred to us. It cannot be said that the precise question involved in the cases before us was involved in the aforesaid decisions or came up for consideration. In Dhodha House (supra) also, the question posed for consideration was different and the observations made therein are not supporting the cause raised on behalf of the appellants. We are not taking a view contrary to any of the said decisions of this Court. Thus, there is no need to refer the case to a larger Bench.45. It was also submitted that as the bulk of litigation of such a nature is filed at Delhi and lawyers available at Delhi are having expertise in the matter, as such it would be convenient to the parties to contest the suit at Delhi. Such aspects are irrelevant for deciding the territorial jurisdiction. It is not the convenience of the lawyers or their expertise which makes out the territorial jurisdiction. Thus, the submission is unhesitatingly rejected.46. It was also submitted that the suit may be ordered to be transferred to Delhi. We cannot order transfer of suit in these proceedings. In case parties so desire, they are free to file appropriate application but the suit is required to be presented in the court of competent jurisdiction only thereafter the question of transfer would be germane.47. In our opinion, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act have to be interpreted in the purposive manner. No doubt about it that a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain. He need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises. However, if the plaintiff is residing or carrying on business etc. at a place where cause of action, wholly or in part, has also arisen, he has to file a suit at that place, as discussed above.