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Tuesday, July 7, 2015

Section 62 of the Copyright Act, 1957 and section 134(2) of the Trade Marks Act, 1999 with regard to the place where a suit can be instituted by the plaintiff. - Since the Head office is situated at Bombay,and Since the cause of action arose at Bombay , the plaintiff ought to have filed a suit at Bomabay instead of at Delhi simply because there is a branch office and simply because the advocates at Delhi are well versed in this type of litigations - Interpretation of law should be in a purposive manner - 2015 S.C. MSKLAWREPORTS



Plaintiff filed
a  suit  praying  for  relief  against  defendant  No.1  so  as  to  prevent
infringement of the rights of the plaintiff without obtaining  the  licence.
The  defendant  owns  cinema  halls  in   Maharashtra   and   Mumbai   where
infringement is alleged and the entire cause of action, as  alleged  in  the
plaint, has arisen in Mumbai, Maharashtra.

Civil Suit FAO (OS) No. 359/2007 has been filed in the High  Court  at
Delhi, by virtue of the fact that the Branch  Office  of  the  plaintiff  is
situated at Delhi and the plaintiff is carrying on the  business  at  Delhi.
However, it is not disputed that the plaintiff’s Head Office is situated  at
Mumbai.

The objection was  raised  by  the  defendant  with  regard  to  the
territorial jurisdiction of the court at Delhi. The  single  Bench  and  the
Division Bench of the High Court have upheld the  objection  and  held  that
the suit should have been filed in the facts of the case, in  the  court  at
Mumbai. Hence, the impugned order has been questioned in the appeals.

The Code of  Civil  Procedure,  1908  contains  the  provisions  under
section 20 with respect to institution of the suits where defendant  resides
or cause of action arose. Section 20 of the Code of  Civil  Procedure  reads
thus :

“Section 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 --


(a)  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


(b)  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 work  for  gain,  as  aforesaid,
acquiesce in such institution; or


(c)    the cause of action, wholly or in part, arises.


[Explanation]. : A corporation shall be deemed to carry on business  at  its
sole or principal office in India or, in respect  of  any  cause  of  action
arising at any place where  it  has  also  a  subordinate  office,  at  such
place.”

Section 62 of the Copyright Act is extracted below :

“62. Jurisdiction of court over matters arising under this Chapter. --


(1) Every suit or other civil  proceeding  arising  under  this  Chapter  in
respect of the infringement of copyright in any work or the infringement  of
any other right conferred by this Act shall be instituted  in  the  district
court having jurisdiction.


(2)  For  the  purpose  of  sub-section  (1),  a  "district   court   having
jurisdiction" shall, notwithstanding  anything  contained  in  the  Code  of
Civil Procedure, 1908 (5 of 1908), or any other law for the  time  being  in
force,  include  a  district  court  within  the  local  limits   of   whose
jurisdiction,  at  the  time  of  the  institution  of  the  suit  or  other
proceeding, the person instituting the suit or other  proceeding  or,  where
there are more than one such persons, any of them actually  and  voluntarily
resides or carries on business or personally works for gain.”

Section 134 of  the Trade Marks Act is also extracted below :

“134. Suit for infringement, etc., to be instituted before  District  Court.
-- (1) No suit--


(a)   for the infringement of a registered trade mark; or


(b)   relating to any right in a registered trade mark; or


(c)   for passing off arising out of the use by the defendant of  any  trade
mark which is identical with  or  deceptively  similar  to  the  plaintiff's
trade mark, whether registered or unregistered,


shall be instituted in  any  court  inferior  to  a  District  Court  having
jurisdiction to try the suit.


     (2)   For the purpose of clauses (a) and  (b)  of  sub-section  (1),  a
"District  Court  having  jurisdiction"  shall,   notwithstanding   anything
contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other  law
for the time being in force, include  a  District  Court  within  the  local
limits of whose jurisdiction, at the time of the institution of the suit  or
other proceeding, the person instituting the suit or proceeding,  or,  where
there are more than one such persons any of them, actually  and  voluntarily
resides or carries on business or personally works for gain.


Explanation.--For the purposes of sub-section  (2),  "person"  includes  the
registered proprietor and the registered user.”

  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. 
Thus, for the  aforesaid  reasons  mentioned
by us in the judgment, we are not inclined  to  interfere  with  the  orders
passed by  the  High  Court.  Appeals  are  hereby  dismissed.    No  costs.

                                              

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