The Delhi High Court while reiterating considerations for territorial jurisdiction, has held that the Court would not be vested with jurisdiction merely because advertisement spills over in some other state or that an application has been filed to register for trademark in entire country.
It was opined by the Court that any such order passed by the Court lacking jurisdiction will be null and not-binding on the parties.
Brief Facts of the Case
The present appeal was filed to challenge the order passed by the
Learned Trial Court in the case of Hari Ram & Sons v. Prem Narain
Purwar & Ors. by which the Defendants were restrained from using the
trade mark ‘HARI RAM AND SONS & HR LOGO’. The Appellants/Defendants
in the suit contended that the Trial Court categorically held that
it did not have jurisdiction to entertain the suit but still went ahead
to decree the suit and hence, the decree passed was null and void.
The Respondent/Plaintiff in the suit challenged the finding of the Trial Court that it did not have the territorial jurisdiction to entertain the suit. Both the appeals arose from the same judgement and therefore, heard together and disposed by way of this common judgement.
The Plaintiff alleged that he has been involved in the business of manufacturing and sale of sweets, namkeens etc. since 1890 under the trademark ‘M/s. HARI RAM & SONS’ and subsequently in 1964 trademarks ‘HR LOGO’ was adopted along with the words ‘HARI RAM &SONS’ and that he was the registered proprietor of the same. It was contended that in 1911 Hari Ram along with his father started this business along with two other persons and the said arrangement continued till 1943. Pursuant to this, the mother of Hari Ram had partitioned all movable and immovable properties and it was then that the namkeen business came to the share of Hari Ram. Since then the mark has been used by the firm followed by the legal heirs.
It was argued that the Defendants adopted the same mark and business
with mala fide intentions and were partners too in the firm. However, in
the case titled as Sanjay Purwar v. Shiv Shanker Lal and Ors. the Court
held that the business was not a joint family business and therefore,
the Defendants did not have the right to seek partition or cause any
interference in the business. The Defendants raised a preliminary
objection with respect to territorial jurisdiction and therefore, the
Trial Court after having heard the parties ruled that it lacked
territorial jurisdiction but since evidence had already been placed on
record it passed a decree in favor of the Plaintiff. Therefore, the
present appeal.
Contentions in the Case ;
For the present appeal, the Plaintiff contended that the Defendants
were soliciting their business within the territorial limits of Delhi
and this was not even denied by them in their
written statement. Therefore, this should be considered as a deemed
admission based on which the Trial Court did have the jurisdiction. It
was argued that the Trial Court did note
that the Defendants did not specifically deny that they solicited
business in Delhi and therefore, the Court did have jurisdiction to
entertain the suit . The position did not change
and hence, the Plaintiff was not required to submit any more evidence.
It was contended that as per the contentions of the Defendants that the
mark was being advertised in
different magazines and newspapers and the mark was a well-known
trademark, the Trial Court would have jurisdiction. It was further
alleged that the application for registration of the said mark was for
whole country, including Delhi and therefore, the Court did have
jurisdiction.
Contentions of the Defendant in the suit
On the other hand, the Defendants contended that they did not admit to any such contention of soliciting business in Delhi and since Plaintiff gave vague answers with respect to this, the Court rightly held that it did not have jurisdiction to entertain the suit. It was argued that the advertisement was only done in the State of Uttar Pradesh and not Delhi and any how based on advertisement the Trial Court could not be vested with jurisdiction. It was further contended that on the basis of the application filed for registration of trademark the territorial jurisdiction of the Court cannot be decided.
High Court's Observations
With respect to whether the Defendant admitted soliciting business in Delhi, the Court looked at the plaint and the written statement.
The Court opined that the Defendant explicitly stated that their business is only limited to the State of Uttar Pradesh and merely because they did not use the word ‘soliciting’ the same cannot be said to be a deemed admission as the written statement has to be read as a whole and not in isolation.
With respect to evidence for proving territorial jurisdiction the
Court observed that the Trial Court had framed a specific issue
pertaining to territorial jurisdiction and the same was
conveyed to the Plaintiff that there was no such admission of the
territorial jurisdiction by the trial court. Hence, the Plaintiff should
have led evidence for the same.
The Court further pointed out that the Defendants have admittedly carrying on business and advertising the same in the State of Uttar Pradesh. Merely because the advertisement in the print and electronic media might have spill over circulation in Delhi the same would not vest jurisdiction.
With respect to the filing of application for registration of
trademark in entire county the Court remarked that it could have been a
relevant consideration but only at a preliminary
stage. After evidences have been led and the mere fact that the
Defendant filed an application to register for trademark would not be
sufficient to vest jurisdiction. Moreover,
the Court noted that such application could be amended also and the same
could be directed by the registrar as well as the application is
pending.
The Court propounded that in the present case both the parties
admittedly carry on their business in the State of Uttar Pradesh and
there was no cause of action that arose within
the territorial jurisdiction of the Trial Court . It was opined that the
plaint can be returned at any stage of the suit and therefore, if the
Court did not have jurisdiction it would return the plain to be
presented to the right Court. And if such Court which did not possess
jurisdiction recorded any finding the same would not be binding and in
fact would be null. The Court opined that the trial court ought to have
returned the plaint and should not have passed a decree in favor of the
Plaintiff.
The Court based on the aforementioned reasons set aside the order of the Trial Court and returned the plaint to be presented to the right forum.
Case Title : Vivek Purwar & Anr. V. Hari Ram & Sons ; Hari Ram & Sons V. Vivek Purwar & Anr.
Citation: RFA-IPD 4/2022 ; RFA-IPD 5/2022 & CM 96-99/2022
Bench: Hon’ble Mr. Justice Navin Chawla
Judgement ;
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(With input from news agency language)
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