Objection of territorial jurisdiction has to be construed after taking all averments in the plaint to be correct: High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 2nd March 2022 CS(COMM) 214 2021 SAISONS TRADE AND INDUSTRY PRIVATE LIMITED ..... Plaintiff Through: Mr. Neeraj Grover Mr. Abhijeet Deshmukh Ms. Meenakshi Ogra and Mr. Vikram Singh Advocates. MAITHRI AQUATECH PRIVATE LIMITED& ORS. Defendants Through: Mr. Vinay Navare Advocate with Mr. Jay Kishor Singh Advocate for D 1. Mr. Prithvi Raj Sikka Advocate for D 2 & D 3. HON BLE MS. JUSTICE ASHA MENON O R D E R I.As. 13230 2021 & 6064 2021r w 151 CPC seeking leave of the court to file the suit in Delhi) This order will dispose of the application filed on behalf of defendant No.1 under Order VII Rule 10 read with Section 151 of the Civil Procedure Code 1908 for return of the plaint as well as the application of the plaintiff under Section 20(b) of the CPC seeking leave to file the suit in Delhi. 2. It is the contention of Mr. Vinay Navare learned senior counsel for the defendant No.1 that the suit has been filed in Delhi whereas neither the plaintiff nor the defendant No.1 was located in Delhi. According to learned senior counsel for defendant No. 1 the plaintiff had an office in Mumbai and the defendant No.1 was located in Hyderabad and therefore under Section 20 CPC leave of this court to file the suit here could not have even been sought. Relying on the judgment of a Coordinate Bench of this Court in Escorts Limited v. Tejpal Singh Sisodia 2019 SCC OnLine Del 7607 it was submitted that online activity through a website which was accessible from all parts of the world could not vest any and every court with jurisdiction. Moreover there was no document placed on the record to show that the defendants No.2 and 3 had any business in Delhi or that some person had actually accessed the website in Delhi and purchased the commodity from the defendants No.2 and 3. Thus when the defendant No.1 had not acquiesced to the jurisdiction of this court the plaint was liable to be returned. Reliance in this regard has been placed on the order of a Coordinate Bench of this Court in Ajay Pal Sharma vs. Udaiveer SinghCPC. The defendant No.1 was carrying on business through an interactive official website which could be accessed from anywhere in India including Delhi. The defendants No.2 & 3 were marketing and selling agents of defendant No.1 having their registered offices in Delhi and thus Delhi could be deemed to be its principal place of business. Reliance has been placed on the judgment of a Division Bench of this Court in World Wrestling Entertainment v. Reshma Collection 2014 SCC OnLine Del 2031. Therefore the Delhi courts had jurisdiction to try the matter. It was submitted that on the averments in the plaint there was nothing whereby it could be held that this court has no jurisdiction for the plaint to be returned. At best if two courts had jurisdiction then the plaintiff had sought leave to sue in Delhi which may be granted. Reliance has also been placed on the decision of the Bombay High Court in Suresh Kumar Vs. Maharashtra State Electricity Distribution Company Ltd. 2014 SCC OnLine Bom 2873 to submit that where two courts had jurisdiction the leave of the court alone was required to proceed in one of the jurisdictions which the plaintiff had sought but in any case the suit could not be dismissed as prayed for in the application. Further it has been submitted that merits of the case cannot be considered at this juncture. Reliance has been placed on Exphar SA & Anr. Vs Eupharma Laboratories Ltd. & Anr. 2004SCC688 Begum Sahiba Sultan Vs. Mohd. Mansur Ali Khan & Ors 2007 SCC OnLine SC 504 and RSPL Limited Vs. Mukesh Sharma & Ors. 2016 SCC OnLine Del 4285. 10. The Patents Act 1970 provides in Section 104 that no suit for a declaration under Section 105 or for any other relief under Section 106 or for infringement of patents shall be instituted in a court inferior to that of a District Court “having jurisdiction to try the suit”. Therefore the situs for filing of this suit would be governed by the provisions of CPC. Section 15 of the CPC provides that every suit is to be instituted in the lowest grade competent to try it. Section 16 of the CPC provides that subject to pecuniary and other limitations prescribed by law suits in respect of the immovable property of various kinds are to be instituted in the court within whose local limits the property is situated. If immovable property was situated within jurisdiction of different courts the suit could be instituted in any one of these courts within the local limits of whose jurisdiction any portion of the property was situated. Section 18 of the CPC deals with the place of the institution of the suits when local limits of jurisdiction of courts were uncertain. Section 19 of the CPC provides that a suit for compensation for wrong done to the person or to movable property if done within the local limits of the jurisdiction of one court whereas the defendant resided or carried out business etc. within the local limits of the jurisdiction of another court the suit could be instituted at the option of the plaintiff in either of the said courts. Finally Section 20 of the CPC provides 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— 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 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 works for gain as aforesaid acquiesce in such institution or The cause of action wholly or in part arises. or in respect of any cause of action arising at any place where it has also a subordinate office at such place.” In the present case the „memo of parties‟ states that the plaintiff has its address at Andheri Mumbai. The defendant No.1 is located at Cherlapally Hyderabad Telangana. The defendant No.2 is located at Mayapuri Industrial Area Phase II New Delhi and the defendant No.3 has its address at Karol Bagh New Delhi while the defendant No.4 is located in Las Vegas USA. It is apparent that out of the four defendants two are located in Delhi. Merely because the defendant No.1 claims that he has not acquiesced to the institution of the suit in Delhi does not render the court powerless under Section 20(b) of the CPC. The plaintiff has in fact filed I.A. 6064 2021for leave of the court to institute the suit at Delhi. The plaintiff has therefore complied with the provisions of Section 20(b). It would of course lie within the discretionary powers of the court to grant or refuse the leave. 12. That apart Section 20(c) of the CPC provides for jurisdiction inhering in that court where the cause of action wholly or in part arises. The plaintiff has filed as Document No.23 printout of the IndiaMart Web page for Water Treatment and Purification Plant and Atmospheric Water Generator where there is a product brochure relating to brand make W360 and at the „contact seller‟ the details of the defendant No.2 Sophisticated Industrial Materials Analytic Labs Pvt. Ltd. is given. A brochure of the Defendant No.2 of the product „MEGHDOOT Atmospheric Water Generator with Remineralizer‟ is placed at Page no.443 of the Plaintiff‟s Documents which is the product manufactured by the Defendant No.1wherein the defendant No.2 is named as the promoter and marketer while the defendant No. 3 is named as the seller. It is well settled that while dealing with an objection of jurisdiction raised pre trial under Order VII Rule 10 CPC the averments in the plaint and the documents annexed thereto are alone to be considered. Thus it has to be seen whether the plaintiff has disclosed sufficient justification for permitting the trial of the suit in this court.the issue related to Section 62 of the Copyrights Act 1957 what is relevant for our purpose is the following observation of the Supreme Court: “9. 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 a plaint on the ground of jurisdiction the Division Bench should have taken the allegations contained in the plaint to be correct….” emphasis added) 15. The judgment of the Division Bench of this Court in RSPL Limited was again in relation to infringement of trademark and copyright but while dealing with the application under Order VII Rule 10 CPC it was held that the objection of territorial jurisdiction has to be construed after taking all averments in the plaint to be correct and that while “considering a plaint from the standpoint of Order VII Rule 10 CPC it is only the plaint and the documents filed along with it that need to be seen”. In World Wrestling Entertainmentthe Division Bench of this Court held that in a website transaction the ad on the website was only an invitation to offer and not an offer just as a menu in a restaurant. If an invitation is accepted by a customer in Delhi then it becomes an offer made in Delhi for purchasing of the goods advertised on the website as is the case in the present matter where advertisement is made on IndiaMart by the defendants No.2 & 3 of the products of the defendant No.1. The Division Bench in World Wrestling Entertainment considered it safe to presume that though the web server was not located in Delhi but the customers in Delhi who wished to purchase an article available on the website of the appellant in that case could access the website on their computer. The purchaser would place the order for the article from his computer in Delhi. The payment would be made either through credit or debit card or through cash on delivery again in Delhi and ultimately the goods would be delivered to the customer in Delhi. Therefore it was concluded that the rules that applied to contracts concluded over the telephone would apply with equal vigour to contracts concluded over the internet. In other words contracts would be completed at the place where the acceptance is communicated. When the transaction between the seller and purchaser occurs through internet i.e. on a website the offer and acceptance take place instantaneously and the acceptance is also instantaneously communicated to the customer through the internet at Delhi. Therefore in such a case part of the cause of action would arise in Delhi. 17. We can apply these principles to the facts of the present suit. From the documents filed at pages 437 466 of the Plaintiff‟s Documents it is not only evident that the website can be accessed by the residents of Delhi and the products of defendant No.1 would be delivered to them at Delhi additionally the advertisers sellers of the products being defendants No.2 & 3 are actually located in Delhi carrying on business and working for gain here. The product as reflected in the brochure of the Defendant No. 2 at page no. 443 and as advertised on IndiaMart by the defendants No.2 & 3 at page no. 437 establish that it is the same product of the defendant No.1 that is advertised on its website the printout of which is placed on the record as Document No.12 of the Plaintiff‟s Documents. Any one accessing the website can place an order for the products of defendant No.1 from Delhi make payments to the seller and obtain the product in Delhi. Thus seen from all angles it is clear that the plaintiff is entitled to file the suit before this Court and the leave as sought for is to be granted. 18. As regards the judgments relied upon by the learned counsel for the defendants the facts in Escorts Limitedas also Ajay Pal Sharma supra) relate to defamatory statements whereas the judgments relied upon by the plaintiffs are apposite as they relate to conclusion of contract in relation to sale and cause of action in respect of online sale transactions. Therefore the judgments relied upon by the learned counsel for the defendant No.1 are not applicable to the facts of the present case. 19. Accordingly the application i.e. 6064 2021 for leave is allowed. The application I.A. 13230 2021 under Order VII Rule 10 CPC is 20. The applications are disposed of. CS(COMM) 214 2021 & I.A. 6062 202121. An opportunity is granted to the defendants No.2 & 3 to file written statements alongwith affidavit of admission denial of documents filed by the plaintiff within four weeks with advance copies to the learned counsel for the plaintiff who may file replications to the written statements alongwith affidavit of admissions denial of documents filed by defendants No.2 & 3 within four weeks thereafter. Only one opportunity shall be given to the defendants No.2 & 3 to do the needful. 22. The case be listed now for framing of issues on 21st July 2022. 23. The order be uploaded on the website forthwith. MARCH 02 2022 ASHA MENON) 

Summary: 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. Objection of territorial jurisdiction has to be construed after taking all averments in the plaint to be correct. While considering a plaint from the standpoint of Order VII Rule 10 CPC, it is only the plaint and the documents filed along with it that need to be seen and the same was upheld by High Court of Delhi through the learned bench led by Justice Asha Menon in the case of SAISONS TRADE AND INDUSTRY PRIVATE LIMITED vs. MAITHRI AQUATECH PRIVATE LIMITED&amp; ORS. [CS(COMM) 214/2021] on 02.03.2022. The facts of the case are that the present application has been filed on behalf of defendant under Order VII Rule 10 read with Section 151 of the Civil Procedure Code 1908 (for short „CPC‟) for return of the plaint as well as the application of the plaintiff under Section 20(b) of the CPC seeking leave to file the suit in Delhi as the suit was filed in Delhi but neither the plaintiff nor the defendant was located in Delhi. The plaintiff had an office in Mumbai and the defendant was located in Hyderabad and therefore, under Section 20 CPC, leave of this court to file the suit here should not have been sought. The plaintiff’s counsel submitted that the jurisdiction of the court had been invoked under Section 20(b) CPC. The defendant was carrying on business through an interactive official website, which could be accessed from anywhere in India, including Delhi. Further it was stated since the defendants have their registered offices in Delhi, and thus, Delhi could be deemed to be its principal place of business. The defendant’s counsel stressed on the lack of jurisdiction. He urged that the plaint be returned for being filed in the court with jurisdiction, namely Hyderabad, where the defendant No.1 was located. In view of the facts and circumstances, the Court held that the plaintiff is entitled to file the suit before this Court and the leave, as sought for, is to be granted as it is not only evident that the website can be accessed by the residents of Delhi and the products of defendant is delivered at Delhi, but also the advertisers/sellers of the products are actually located in Delhi carrying on business and working for gain here. The Court observed, “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. Objection of territorial jurisdiction has to be construed after taking all averments in the plaint to be correct. While considering a plaint from the standpoint of Order VII Rule 10 CPC, it is only the plaint and the documents filed along with it that need to be seen.”