Prathiba M. Singh, J.

I. BACKGROUND

1. The present is an appeal challenging the order dated 28 th January, 2022 passed by the ld. ADJ-03, Patiala House Courts, New Delhi in the suit FAO-IPD 1/2022 Page 1 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 bearing TM 1/2022 titled Vishal Pipes Limited v. Bhavya Pipe Industry , which is a suit seeking permanent injunction against infringement of registered trademark and copyright as also reliefs for passing off, delivery up, rendition of accounts, etc. for usage of the trademark 'BPI', which is stated to be similar to the Appellant's/Plaintiff's (hereinafter "Plaintiff") trademark 'VPL INDIA'. The grievance of the Plaintiff was that the ld. ADJ had refused to grant an ex parte order of injunction and had also failed to appoint a Local Commissioner for seizure of the alleged infringing goods.

2. When the matter was listed on 2nd March, 2022, the Court had noticed that while trademark disputes are being adjudicated at the District Level by Commercial Courts, the present order had been passed by the ld. ADJ who was not designated as a Commercial Court. Upon enquiring the reason for the same, the Court was informed that the suit is valued below Rs.3,00,000/- and thus, in view of the pecuniary provisions in the Commercial Courts Act, 2015 (hereinafter "CCA"), where the 'specified value' for 'commercial disputes' is 3,00,000/-, read with Section 134 the Trade Marks Act, 1999 (hereinafter " Trademarks Act ") where a suit relating to trademarks is to be filed and heard only by a District Court, the suit was marked to a District Judge, not designated as a Commercial Court. The logical corollary of this is that the provisions of the CCA also are not made applicable to such a suit. The Court found this situation to be quite peculiar and, accordingly, passed the following order on 2nd March, 2022:

3. The question that arises for consideration in this matter is as to whether IPR suits filed before District Courts, valued below Rs. 3 lakhs, ought to be listed before and adjudicated upon by the District Judges (Commercial) under the provisions of the CCA or by District Judges (non- Commercial), as normal civil suits.

4. Owing to the importance of the issue that has arisen before the Court for consideration, various counsels as also the Amicus Curiae have made their submissions and filed written notes of arguments. II. SUBMISSIONS OF THE LD. COUNSEL FOR THE PLAINTIFF

5. On behalf of the Plaintiff, submissions were made by Mr. S.K. Bansal, ld. counsel who represented the Plaintiff even before the District Court. The same are as under:

• On the basis of these submissions, it was urged that the suit ought to be continued before the ld. ADJ (non-Commercial). However, he submits that he would have no objection if the matter is heard by the Commercial Court instead.

III. SUBMISSIONS OF THE LD. AMICUS CURIAE

6. Ms. Swathi Sukumar, ld. Amicus Curiae, has given a written note of arguments and has also made her submissions as under:

• This raises the issue of two competing factors: (i) the twin test of pecuniary and subject matter jurisdiction that has to be satisfied by a suit for applicability of CCA; and (ii) public policy considerations which prohibit forum-shopping and habitual undervaluation of suits. • Notably, the repercussions of undervaluation of suits are high and it would defeat the very purpose of the CCA. Thus, the Court ought to lift the veil on the valuation made by plaintiff in such matters and the plaintiff's right is not unfettered.

• In light of the above, it is clear that the valuation ought not to be whimsical or arbitrary and if it is, then the Court ought to intervene. • Ms. Sukumar, places reliance on the following decisions to support her submissions that the Court is entitled to examine the valuation and the manner in which it may do so:

• The guidance for estimating the value of the suit, may be drawn from the CCA. Under Section 12(1)(d) of the CCA, where the relief sought FAO-IPD 1/2022 Page 6 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 in a suit, appeal or application relates to any intangible right, the market value of the intangible right is to be looked at. Thus, the valuation of a suit in intellectual property matters can be made more stringent, by requiring the plaintiff to furnish information on the market value of the right.

• Further, in the case of trademarks, by a mere assessment of the period for which the brand has been used, the Court can assess the market value of the intangible right. Similarly, royalty rates may be required to be disclosed along with total expected royalty amount.

7. Accordingly, the ld. Amicus submits that by lifting the veil on valuation, the threat of undervaluation and forum shopping can be mitigated and IPR disputes can be placed before the concerned Court accordingly. III. SUBMISSIONS OF LD. COUNSELS ASSISTING THE COURT A. Submissions of Mr. Akhil Sibal, Ld. Sr. Counsel

8. Mr. Akhil Sibal, ld. Sr. Counsel, has also made submissions as under:

9. He thus, relies upon the decision in Subhashini Malik (supra), to highlight the difference between lack of pecuniary jurisdiction and lack of inherent jurisdiction and to argue that clearly in the context of Notification 131 and the 'specified value' under the CCA, there would be no harm in IPR matters being listed before District Judges (Commercial). B. Submissions of Mr. Rishi Bansal, ld. Counsel

10. Mr. Rishi Bansal, ld. counsel, submits that IPR disputes are currently being adjudicated upon by both Commercial and non-Commercial Courts at FAO-IPD 1/2022 Page 8 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 the District Court level.

11. He relies upon the various notifications issued by the High Court in this regard. Mr. Bansal also places reliance on the meeting of the State Court Management Systems Committee (hereinafter "SCMSC") of the Delhi High Court, which was held on 4th February, 2020.

C. Submissions of Mr. Sidharth Chopra, ld. Counsel

12. Mr. Sidharth Chopra, ld. counsel, submits as under:

13. Therefore, Mr. Chopra, ld. Counsel, submits that all IPR disputes, irrespective of their 'specified value' should be adjudicated by Commercial Courts, owing to the object and purpose of IPR statutes and CCA. D. Submissions of Ms. Rajeshwari, ld. Counsel

14. Ms. Rajeshwari, ld. counsel, submits that the intention of the CCA is expeditious disposal of 'commercial disputes'. She submits as under:

• In Soni Dave (supra), the Court has held that Section 12 of the CCA has to be read harmoniously with the Court Fees Act and Suits Valuation Act .

• While the above decisions provide for valuation, basis the reliefs claimed, under Section 12 of the CCA, the market value of the subject matter would also be relevant.

• Such valuation of relief along with market value estimation, can be done using various approaches including income approach, economic benefits, cash flows, future profits, etc. Upon undertaking such valuation, it would be clear that in IPR cases, it is highly unlikely that any relief can be valued below Rs. 3 lakhs. Thus, such suits would should automatically be filed and listed before the Commercial Courts.

• In any event, the question of 'specified value' ought not to be given so much importance so as to control the jurisdiction of the Commercial Courts itself. A mischief ought not to be allowed by having two sets of jurisdictions under two separate substantive provisions, basis pecuniary value. Accordingly, IPR statues and CCA provisions have to be harmoniously construed. In this regard, Section 21 of the CCA has an overriding effect and therefore, the objective of speedy resolution of disputes is to be given importance. • Finally, even if Commercial Courts do not have jurisdiction over an IPR dispute with a 'specified value' of less than Rs.3 lakhs, in V Ramamirtham v. Rama Film Service , AIR 1951 Mad 93, it has been held that while a Court does not have a jurisdiction to try a suit valued above its maximum pecuniary jurisdiction, the converse may not be true. Thus, a Court having jurisdiction to hear matters of a higher pecuniary jurisdiction, for instance, a Commercial Court, can dispose of a suit instituted in a court of a lower grade.

15. In conclusion, she submits as under:

E. Submissions of Mr. Dushyant Mahant, ld. Counsel

16. Mr. Mahant, ld. Counsel, traces the manner in which the pecuniary jurisdiction of the High Court was increased from Rs.5 lakhs to Rs.20 lakhs and thereafter, to Rs.2 crores in 2014. He submits that the 'specified value' of a suit depends on the valuation given in the plaint. It is common knowledge that the valuation in the plaint is based upon legal advice as is clear from the verification clauses, which are signed by parties.

17. Therefore, though the plaintiff may have the capacity to pay the Court fee, based on legal advice that the suit may be valued below Rs.3 lakhs. Thus, the decision on valuation is on most the occasions, of the counsel rather than the litigant.

F. Submissions of Mr. Devesh Vashishth, ld. Counsel

18. Mr. Devesh Vashishth, ld. Counsel, submits that unlike in Delhi, in Gurgaon, only if the valuation is above Rs.25 lakhs, the matter is placed before an ADJ.

19. He also submits that the manner in which the District Judges notified as Commercial Courts deal with 'commercial disputes', is different from the manner in which the same are dealt with by Non-Commercial Judges. Thus, FAO-IPD 1/2022 Page 14 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 'commercial disputes' ought to be adjudicated only by Commercial Courts.

20. At the outset, it is pertinent to clarify that all suits concerning IPR subject-matter are first, civil suits, and such IPR cases, with the enactment of the Commercial Courts Act, 2015 , would be now categorized as 'commercial disputes'. The said definition of 'commercial disputes' under Section 2(c)(xvii) of the CCA, reads as under:

21. Thus, all IPR suits are 'commercial disputes'.

22. The second feature of IPR suits is that such suits are at the lowest, to be instituted before the District Court, irrespective of their pecuniary value as per Section 134 of Trade Marks Act, 1999, Section 62 of the Copyright Act, 1957, Section 104 of the Indian Patents Act, 1970, Section 22 of the Indian Designs Act, 2000, and Section 65 of the Protection of Plant Varieties and Farmers Rights Act, 2001 (hereinafter collectively "IPR Statutes").

23. The purport of these special provisions in IPR statutes is that suits for infringement, passing off, etc. shall be instituted only in a Court, not inferior to a "District Court having jurisdiction". Thus, IPR suits, irrespective of the pecuniary value ascribed to such suits, would have to be instituted in and adjudicated upon by District Courts, and not before any other Courts below FAO-IPD 1/2022 Page 15 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 District Courts. In effect therefore, District Judges/ADJs are the Courts of the "lowest grade competent to try" IPR disputes.

(ii) Jurisdiction in Case of IPR Disputes

24. It is important to note the jurisdiction of Courts, in Delhi, with respect to IPR disputes, prior to the enactment of the CCA and post such enactment.

25. Under Section 9 CPC, civil courts can try all civil suits. Sections 15 to 19 CPC govern the place of suing for specific categories of suits. Insofar as IPR suits are concerned, prior to the enactment of the CCA, Section 20 CPC governed the place where suits are generally filed. Additional fora were provided in the respective IPR statutes, as a matter of convenience for the plaintiff.2 Thus, even before the enactment of the CCA, IPR suits - irrespective of their valuation - could only be filed before the District Court. IPR cases were not filed before Sub-Judges, Civil Judges, etc.

26. Accordingly, prior to 2015, there were only two fora where IPR cases were being adjudicated:

27. On 23rd October, 2015, the CCA came into effect. Post the enactment of the CCA, Commercial Courts were created at the District level and Commercial Divisions were created in High Courts. However, in Delhi, the following two fora continued to have jurisdiction over IPR disputes:

Jurisdiction depending upon pecuniary value. In the Delhi High Court, the pecuniary jurisdiction is Rs.2 crores and above.3

28. On 7th July, 2018, vide Order No.58/DHC/Gaz./G-1/VI.E.2(a)/2018 issued by the Delhi High Court (hereinafter "Order No.58"), all District Judges in Delhi were notified as Commercial Courts. Thus, with this notification, there was one common set of District Judges dealing with all IPR matters. The unique feature was that the District Judges acted both a Commercial Courts and non-Commercial Courts. Effectively therefore, the same two fora as before, continued to have jurisdiction in 2018-2019, with the same District Judges acting in different capacities:

29. In 2019 vide Order No.60 dated 5th December, 2019, specific District Judges in Delhi were notified as Commercial Courts. Therefore, since 2019 till now, there are three classes of Courts where IPR cases are being listed in Delhi:

30. This has now led to an anomalous situation, i.e., all IPR cases have to 3 Delhi High Court Amendment Act, 2015 .

be instituted only in District Courts, at the lowest, irrespective of the pecuniary value. However, in view of the 'specified value' being below Rs.3 lakhs in certain suits, the said IPR suits are being heard and adjudicated upon by a different set of District Judges, i.e., District Judge (non- Commercial), under the provisions of CPC as applicable to civil disputes. In effect, therefore, IPR suits, which are clearly 'commercial disputes' are being made subject to different substantive and procedural laws, before different Courts for adjudication.

31. The question therefore arises:

32. To answer the said question, it is first necessary to examine the jurisdiction of Commercial Courts as per the CCA.

(iii) Scheme of the Commercial Courts Act , 2015

33. In 2015, the CCA was enacted, with the clear intent of providing specialised procedures for expediting the adjudication of 'commercial disputes'. The Preamble of the CCA reads as under:

34. A perusal of the above Preamble as also the settled legal position, shows that the CCA would be applicable when the twin conditions of the dispute being a 'commercial dispute' and having the 'specified value' are satisfied. Concurrently, a plain reading of the 2018 Amendment, would FAO-IPD 1/2022 Page 18 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 show that unless the 'specified value' of a 'commercial dispute' is at Rs.3 lakhs and above, the provisions of the CCA would not be applicable.

35. However, it is now pertinent to analyze the object and purpose of the enactment of the CCA and whether depriving certain IPR disputes from being adjudicated under the CCA by Commercial Courts, would be in line with the objectives of the CCA:

36. The scheme of the CCA including the jurisdictional aspects of the Commercial Courts and the Commercial Divisions of the High Courts was considered by the Supreme Court in Ambalal Sarabhai Enterprises Ltd. (supra). The Supreme Court in the said judgment observed as under:

37. The proposition that Commercial Courts would get jurisdiction in IPR matters only if the twin conditions are satisfied is also reiterated in Super Cassettes (supra), where the ld. Single Judge was concerned with the question as to whether the Commercial Division of the High Court would FAO-IPD 1/2022 Page 22 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 have jurisdiction even if the 'specified value' of the suit is below Rs.2 crores. However, the said judgment was prior to the 2018 Amendment.

(iv) Role of 'Valuation' in Satisfaction of the Twin Test

38. The fact that the twin test requirement is to be satisfied is also held in judgments of various High Courts. This has led to the question as to how such 'specified value' is to be examined and whether valuation of a suit has any role in the same. Some relevant decisions on this issue are considered hereinbelow.

39. In Soni Dave (supra), the ld. Single Judge of this Court has held that the CCA does not interfere with the provisions of the Court Fees Act or the Suits Valuation Act . The observations of the Court are as under:

40. Notably, in Soni Dave (supra), the Court was concerned with a case relating to an immovable property not used exclusively in trade or commerce, and immovable property does have specific Court fee assigned to it in the Court Fees Act .

41. The Kerala High Court also followed the decision of Soni Dave (supra) in C.K. Surendran v. Kunhimoosa [CRP 146/2021, decided on 17th September, 2021] in a suit concerning immovable property and held as under:

Same view was taken by the Karnataka High Court in Fine Footwear Pvt. Ltd. Represented by its Director v. Skechers USA Inc. and Another [2019 SCC Online Kar. 1024]. I am in respectful agreement with the above judgments. No doubt, the specified value of a suit is liable to be computed in accordance with the market value of the immovable property in such suits where, even as per the Court Fees Act , the value is to be determined on the basis of the market value of the property. In respect of suits where the valuation under the Court Fees Act is based on anything other than market value of the immovable property, the valuation under the Court Fees Act should be the basis for deciding the pecuniary jurisdiction."

42. Thus, in Soni Dave (supra) and C.K. Surendran (supra), the Delhi High Court and Kerala High Court held that the valuation of the suit for the purposes of Court fee cannot be different from the 'specified value' as contemplated under Section 12 of the CCA. However, the Karnataka High Court in Kirloskar (supra) - a case concerning IPR - held as under:

43. Thus, insofar as IPR suits are concerned, the Karnataka High Court has taken a view that the Court fee shall be payable on the basis of the relief sought in the plaint, however, the value of the subject matter i.e., the infringement of trademark in a trademark case could be much higher. Thus, FAO-IPD 1/2022 Page 27 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 the value of the suit for the purpose of Court fee and the 'specified value' of the suit for exercising jurisdiction in an IPR matter could be different, in the opinion of the Karnataka High Court.

44. In Fine Footwear Pvt Ltd v. Skechers USA Inc & Ors. , (2019) 5 Kant LJ 358, the Karnataka High Court also interpreted the provisions of the CCA along with the Court Fee Act and the Suits Valuation Act and observed as under:

9. It has been a well settled position of law that the plaintiff being the dominus litis has the prerogative of choosing the Court and determine the valuation of the suit for the purpose of pecuniary jurisdiction, special jurisdiction or for computation of court fees; the FAO-IPD 1/2022 Page 28 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 opposing party cannot insist that the suit be tried before some other Court without establishing the lack of jurisdiction of the Court in which the cause is brought; the suit involves a commercial dispute, is true; but, there is no material placed on record to prima facie show that its specified value is Rupees Three Lakh or above, in terms of Section 2(1)(i) r/w Section 12 of the 2015 Act. A Coordinate Bench of this Court in RFA No. 1/2015 in the case of Kirloskar Aaf Limited v. M/s. American Air Filters Company Inc and Another vide judgment dated 25.09.2018 at paragraph No.8 observed "the twin requirements of this Act are that a dispute has to be a Commercial Dispute and secondly it must be of a certain pecuniary limit, namely Rupees Three Lakh or above ..." In other words, the Commercial Courts have jurisdiction only in such matters which pass the Twin Test i.e., existence of a "Commercial Dispute" as defined under Section 2(1)(c)(xvii) and the "Specified Value" as defined under Section 2(c)(i) r/w Section 12 of the 2015 Act. In the present writ petition, although the suit involves a Commercial Dispute, the subject matter of the suit is apparently less than the Specified Value. To put it succinctly, the commercial courts shall have exclusive jurisdiction if both the commercial dispute and specified value concur to exist and not just one of them, as rightly contended by learned Sr. Counsel for the respondent."

45. The Bombay High Court on the other hand in Bharat Bhogilal Patel v. Leitz Tooling Systems India Pvt Ltd , 2020(82) PTC 458 (Bom) held as under:

28. Additionally, as submitted by Mr. Kohli, there may be certain inefficient consequences resulting from the literal interpretation of Section 16. Illustratively, the present Suit is titled a 'Commercial Suit' and yet, would be governed by the un- amended CPC . However, in my view, should the legislature deem fit, it may carry out an amendment to overcome these consequences and/or may provide a clarification if it so deems fit. Till such time, I am currently bound by the language of Section 16 and am inclined to interpret the said section literally."

46. Thus, the opinions of various High Courts, on the question of valuation in 'commercial disputes' are varied.

(v) Minutes of the Meeting of the State Court Management Systems Committee FAO-IPD 1/2022 Page 30 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13

47. In this backdrop of 'specified value' and its relation to valuation, it would also be relevant to consider the decision taken on the administrative side, by the State Courts Management System Committee of this Court, in its meeting on 4th February, 2020. The question had arisen in the context of a communication received from the ld. District & Sessions Judge, Mr. Dinesh Kumar (as he then was), relating to the jurisdiction of Commercial Courts. In the said letter, the concerned ld. District Judge had brought to the notice of the Committee, the confusion that had arisen in respect of transferring of IPR cases to Commercial Courts. The Committee, consisting of then Hon'ble Mr. Justice R.S. Endlaw and Hon'ble Mr. Justice Yogesh Khanna, considered the said communication and, in its minutes dated 4th February, 2020, directed as under:

48. A perusal of the above Minutes shows that the decision of the SCMSC was that the question as to whether a trademark suit can be valued below Rs.3 lakhs, ought to be left to be decided on the judicial side by the District Judge (Commercial).

49. However, this Court notices that this decision may not have been uniformly implemented in District Courts. Thus, even as on date, there are several IPR suits, which are being instituted and adjudicated by District Judges (non-Commercial). In this view of the matter, this Court is of the opinion that the examination of 'specified value' and valuation, is imperative to determine the relevant forum.

(vi) Determination of Jurisdiction in an IPR Dispute A. Applicable Laws

50. Keeping the above principles in mind, the following would be the list of statutes that could be applicable for considering the issue at hand:

51. It is clear from the above that the term 'specified value' under the CCA would be a factor in determining the Court's jurisdiction. This begs an examination of the term 'specified value', at the first instance. The term 'specified value' is defined in Section 2(i) of the CCA as under:

52. The determination of 'specified value' is to be as per Section 12 of the CCA, which reads as under:

[ Meenakshisundaram Chettiar v. Venkatachalam Chettiar , (1980) 1 SCC 616];

(iii) If the valuation given by the plaintiff is arbitrary and FAO-IPD 1/2022 Page 36 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 unreasonable, the Court may reject the same and permit the plaintiff to correct the valuation or have the plaint rejected. The valuation must not be arbitrary or manifestly inadequate. [ Abdul Hamid Shamsi v. Abdul Majid , (1988) 2 SCC 575]

(iv) The plaintiff cannot whimsically choose a ridiculous figure for filing the suit in an arbitrary manner where there are positive materials or objective standards of valuation of the relief, on the face of the plaint. [Commercial Aviation & Travel Company v. Vimani Pannalal, (1988) SCC 423]

(v) The plaintiff has to give definite reasons for not ascertaining the exact value of the relief. If the exact valuation is not done, on the basis of certain basic requirements, the plaintiff's discretion would become arbitrary. Lack of bonafides would also cloud the right of the plaintiff to value the suit as per its own will. The Court can then compel the plaintiff to examine the plaint and would require the plaintiff to pay the requisite ad valorem Court fee. [ Bharat Sanchar Nigam Ltd. v. All India Bharat Sanchar Nigam Executives' Association (Regd.) & Ors. (2006) 130 DLT 195]

(vi) The plaintiff being the dominus litis, can choose its forum. However, this prerogative or convenience for the plaintiff cannot eclipse the requirement of justice. The right to choose the forum is not an absolute one and can be taken away. [ Subhashini Malik v. S.K. Gandhi & Ors. (2016) 233 DLT 83]

(vii) A court of a higher grade does not lack inherent jurisdiction to adjudicate a dispute which could have been entertained by a lower court, whereas the same would not hold good in the reverse situation.

[Kesavarapu Venkateswarlu & Ors. v Sardharala Satanaryana & Ors., AIR 1957 AP 49(FB) and V Ramamirthaam v. Rama Film Service, AIR 1951 Mad 93(FB)]

(viii) There are three categories of jurisdiction: (i)Territorial jurisdiction; (ii)Pecuniary jurisdiction; and (iii)Subject matter jurisdiction. It is only if the Court lacks subject matter jurisdiction, that it would lack inherent jurisdiction. [ Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. And Ors. , ( 2005) 7 SCC 791 and Mantoo Sarkar v Oriental Insurance Company Limited & Ors. , (2009) 2 SCC 244]

(ix) The intention of the underlying statutes has to be considered and given effect to, unless it leads to an absurdity. The construction of a statute ought to be such as to advance the intention of the legislation and remedy any mischief. [ Glaxo Laboratories v. Presiding Officer , AIR 1984 SC 505]

(x) When there are multiple suits which could govern any subject matter, the endeavour of the Court ought to be to apply a harmonious construction to the said provisions, especially when there is no repugnancy or inconsistency. [ Maya Mathew v. State of Kerala and Ors. , (2010) 4 SCC 498 and Lalit Babbar (supra)] D. Consequences of Absolute Discretion: Undervaluation and Forum Shopping

55. As per the table of Court fees discussed in paragraph 53 above, it is noteworthy that insofar as a decree of declaration and consequential relief or injunction is concerned, the factors to be considered are not provided in the Court Fees Act . As per the legal position captured above, it is the Court's FAO-IPD 1/2022 Page 38 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 duty to ensure that a reasonable estimate is provided by the plaintiff and there is no undervaluation. Such an estimate could be arrived at on the basis of the requirements stipulated in the statutory provisions.

56. This is especially important for IPR suits because usually in IPR suits, the plaintiff seeks a decree of interim/permanent injunction or a decree of declaration, coupled with damages/rendition of accounts. Whenever reliefs are sought of damages or rendition of accounts, the suit is valued on a monetary basis by the plaintiff using a rough estimate and Court fee is paid on the said basis. It is very unlikely that the valuation in suits where one of the reliefs sought is for damages and/or rendition of accounts, is less than Rs.3 lakhs. However, even in some cases where damages or rendition of accounts is sought, the ingenuity of lawyers and litigants does lead to suits being valued at less than Rs.3 lakhs. In such cases, the relief of injunction is also valued at Rs.200/- or any other amount less than Rs.3 lakhs and minimal Court fee is paid, despite the intellectual property - which is the subject matter of the suit - being of a very high value.

57. For instance, in the present appeal which is before this Court, the mark being sought to be protected is 'VPL INDIA' against the Defendant's mark 'BPI'. The turnover of the Plaintiff as pleaded in the suit and as per the CA Certificate placed on record dated 5th August, 2021, is approximately Rs.67306 lakhs over the last three financial years, i.e., 2018-2021. Moreover, the Plaintiff has stated in its plaint that it has "commanded handsome sales running into Billions of Rupees". It is also stated to have spent "enormous amounts of money" in advertising and publicity. The said mark, including the label, is stated to have extensive goodwill and reputation, having been adopted in 1988, with copyright and trademark FAO-IPD 1/2022 Page 39 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 registrations dating back to 2006. The Plaintiff has stated that it has reputed clients such as Uttar Pradesh Jal Nigam, NTPC, BSNL, MTNL, L&T, etc., across India and worldwide. The Plaintiff is also stated to have extensive reach and online presence through both its website and third-party sites like IndiaMART, Facebook, LinkedIn, etc. The Plaintiff also has numerous quality certifications and recognitions, including ISO, BIS, and One Star Export House (recognized by the Director General of Foreign Trade). Despite all these facts, it is puzzling that the reliefs of injunction as also delivery-up, are valued at Rs. 200/- each for Court fee and jurisdiction, which is much below Rs.3 lakhs. The Court fee paid is Rs.100/- for such reliefs. Additionally, the relief of rendition of accounts is valued at Rs. 1000/- and Court fees of Rs. 150/- is paid for the same. Such a course of action appears to be quite unusual and quixotic, as there is no basis in the suit as to why a trademark suit of a brand having such a huge turnover is sought to be valued at such a low threshold. Moreover, the suit in the present case does not mention the 'specified value' at all, but merely the value of reliefs sought.

58. In the opinion of this Court, by merely valuing the relief in the suit below Rs.3 lakhs, the plaintiff ought not to be permitted to escape the rigors of the CCA or indulge in forum shopping or bench hunting. The practice of forum shopping has been time and again condemned by Courts and most recently in Vijay Kumar Ghai & Ors. v. State of West Bengal & Ors. [SLP (Crl.) 10951 of 2019, decided on 22nd March, 2022], the Supreme Court held as under:

MANU/SC/0161/2021 : (2021) 5 SCC 435 observed that multiple complaints by the same party against the same Accused in respect of the same incident is impermissible. It held that Permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the Accused being FAO-IPD 1/2022 Page 41 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 entangled in numerous criminal proceedings. As such he would be forced to keep surrendering his liberty and precious time before the police and the courts, as and when required in each case."

59. It is thus clear to this Court that while all IPR disputes irrespective of their 'specified value' may not invoke the provisions of the CCA, there ought to be a preliminary exercise required to confirm that the valuation of such suits has not been done arbitrarily. This may be done on the judicial side, as per the SCMSC. Such examination by the Commercial Court is essential so as to obviate any attempts of forum shopping.

E. The Way Forward

60. In the backdrop of the above discussed legal position and the statutory provisions, insofar as Delhi is concerned, the following facts are of utmost relevance:

61. The facts being so, there are two pertinent questions before this Court:

62. To answer the above, first, the discussion in paragraph 25 above is pertinent, as it clearly shows that IPR disputes are a set of disputes which lie only before the District Court. Thus, in that sense, such disputes are an exception to the rule of institution of cases at the Court of the lowest level having jurisdiction. With the enactment of the CCA, the subject-matter jurisdiction over IPR disputes now vests with the Commercial Courts, at the District Court Level. Therefore, can litigants and lawyers escape the rigors of the provisions of the CCA by valuing the suits below Rs.3 lakhs? The answer ought to be a clear 'NO'. This is due to the following reasons:

In fact, Delhi is one of the territories where ad valorem Court fee is paid beyond a particular threshold. When seen from this perspective, i.e., that at Rs.3 lakhs, the Court fee payable is minimal, it is apparent that the only reason for which IPR disputes may be valued below Rs.3 lakhs by litigants or lawyers would be to indulge in forum shopping and bench hunting and not merely to exercise the option of the forum where relief is sought. The purpose would also be to escape the rigors of the provisions of the CCA. Such a practice would constitute abuse by plaintiffs of their rights, at the very least.

(vi) Usually, IPR disputes are filed by business entities. However, considering the Court fee payable even if such suits are valued at a minimum of Rs.3,00,000/-, even individual IPR owners would be easily able to afford the Court fee at the rate of 1-3%. There thus appears to be no valid or justifiable cause to value an IPR suit below Rs.3 lakhs except for oblique motives. Thus, the discretion vested in the plaintiff to value the suit as it pleases, ought not to be extended or stretched to an extent that it encourages malpractice, misuse, abuse and forum shopping.

63. In view of the above analysis and legal position, since IPR suits have to be instituted in the District Courts "having jurisdiction", for the territory of Delhi, it is held that the District Judges notified as FAO-IPD 1/2022 Page 45 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 Commercial Courts which have subject matter jurisdiction under the CCA, would be the District Courts "having jurisdiction".

64. Therefore, in Delhi, in order to avail of its remedies provided under the various IPR statutes, a plaintiff ought to usually institute the suit before the District Court having jurisdiction i.e., District Judge (Commercial) by valuing it at Rs. 3 lakhs or above, and pay the basic required Court fee to invoke the jurisdiction of the said Court. However, acknowledging the plaintiff's reasonable discretion in valuing its suit, it is held that in case a plaintiff values an IPR suit below the threshold of Rs.3 lakhs, such suits would be listed before the District Judge (Commercial) first, in order to determine as to whether the valuation is arbitrarily whimsical or deliberately undervalued.

65. This Court is cognizant of the fact that the valuation of intellectual property is by itself a very complex process. It is clarified that the Commercial Court is not expected to value the specific IP on the basis of any mathematical formulae but to broadly take into consideration whether the said IP would be worth more than Rs. 3 lakhs, which is the threshold for the Commercial Court to exercise jurisdiction.

66. In light of the above discussion, the following directions are issued:

All IPR suits to be instituted before District Courts, would therefore, first be instituted before the District Judge (Commercial).

(ii) In case of any IPR suits valued below Rs. 3 lakhs, the Commercial Court shall examine the specified value and suit valuation to ensure it is not arbitrary or unreasonable and the suit is FAO-IPD 1/2022 Page 46 of 47 Signature Not Verified Digitally Signed By:Devanshu Signing Date:04.06.2022 22:50:13 not undervalued.

(iii) Upon such examination, the concerned Commercial Court would pass appropriate orders in accordance with law either directing the plaintiff to amend the plaint and pay the requisite Court fee or to proceed with the suit as a non-commercial suit.

(iv) In order to however maintain consistency and clarity in adjudication, even such suits which may be valued below Rs.3 lakhs and continue as non-commercial suits, shall also continue to be listed before the District Judge (Commercial), but may not be subjected to the provisions of the CCA.

(v) All pending IPR suits before the different District Judges (non- Commercial) in Delhi shall be placed before the concerned District Judges (Commercial) for following the procedure specified above. plaintiffs who wish to amend the Plaint would be permitted to do so in accordance with law.

67. Copy of this judgment be sent to the worthy Registrar General, to be sent to all District Courts for necessary action.

68. The digitally signed copy of this judgment, duly uploaded on the official website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated as the certified copy of the judgment for the purpose of ensuring compliance. No physical copy of the judgment shall be insisted upon by any authority/entity or litigant.

PRATHIBA M. SINGH JUDGE JUNE 3, 2022 dj/dk/ms FAO-IPD 1/2022 Page 47 of 47