MANU/DE/2834/2010

IN THE HIGH COURT OF DELHI

C.S. (OS) No. 1204/2008

Decided On: 14.09.2010

Appellants: Merck Kgaa and Anr.

Vs.
Respondent: Ethypharm L.L. Pvt. Ltd.

Hon'ble Judges:
V.K. Shali, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Malavika Rajotia, Adv.

For Respondents/Defendant: Shwetasree Majumdar, Adv.

Subject: Civil

Subject: Intellectual Property Rights

Catch Words

Mentioned IN

Acts/Rules/Orders:
Trade Marks Act, 1999 - Section 134(2); Civil Procedure Code (CPC) - Sections 20
and 151 - Order 6, Rule 17 - Order 7, Rule 11

Cases Referred:
Dabur India Ltd. v. K.R. Industries MANU/SC/2244/2008 : (2008) 10 SCC
595; Sangram Singh v. Election Tribunal MANU/SC/0044/1955 : AIR 1955 SC 425

JUDGMENT

V.K. Shali, J.

I.A. 13220/2008 (Under Order 7 Rule 11 CPC), IA 805/2009 & IA 11897/2010

(Under Order 6 Rule 17 CPC (seeking amendment in the plaint to bring about the
latest address of the plaintiff company in Delhi)

1. This order shall dispose of the three applications bearing Nos. 13220/2008,
805/2009 & 11897/2010.

2. Briefly stated that facts of the case are that the plaintiff had filed the present suit
against the defendant for infringement of trademark, passing off and damages in
respect of pharmaceutical preparation sold by them under the trade name of LODOZ.
It was alleged that the defendant was selling the pharmaceutical preparations under
the trade name of LODIL which was infringing the trade mark of the plaintiff. The
defendant was allegedly also passing off its product as that of the plaintiff.

3. The defendant after filing of the written statement, filed an application under
Order 7 Rule 11 read with Section 151 CPC on 22.10.2008, wherein it was alleged
that the plaint is liable to be rejected. The grounds for rejection of the plaint was
that the suit is barred by law. It was the case of the defendant that this Court does
not have the territorial jurisdiction to try the suit. It was alleged that the present suit

is a composite suit for infringement of trade mark and passing off filed by
the plaintiff as stated by them in para 24 of the plaint.

4. The suit has been filed in Delhi by invoking Section 134(2) of the Trade Marks Act,
1999. It was alleged that so far as invocation of Section 134(2) of the Trade Marks
Act is concerned, the plaintiff had stated that its place of business is at A-2/202,
Printers Apartments, Sector-13, Rohini, Delhi-110085, which was stated to be the
Branch office of the plaintiff. It was stated that as a matter of fact, this was the
residential address of one Mr. Bindra who was working for the plaintiff company. It
was alleged that the defendant has made independent investigation and filed an
affidavit of the investigator that A-2/202, Printers Apartments, Sector-13, Rohini,
Delhi-110085 is a residential address of one Mr. Bindra and not the branch office of
the plaintiff. Photographs of the flat in question were also placed on record to show
that it could not have been the business address of the plaintiff company.

5. Extending this objection further, it was the case of the defendant that so far as
the passing off action is concerned, Section 20 CPC confers jurisdiction on two
Courts, one where the defendant resides or works for gain or where the cause of
action accrues. It was the case of the defendant that no part of the cause of action
has accrued in Delhi and the defendant is neither having residence nor business in
Delhi. It is alleged that the defendant is doing business at various places other than
the Delhi and therefore, this Court does not have the jurisdiction. It was urged by
the learned Counsel that so far as the question of concealment of facts or a party
being a prior user or not, would not be a ground for rejection of the plaint, though it
may be relevant for purpose of grant of interim injunction or at the time of final
disposal of the matter.

6. In addition to this, in the application under Order 7 Rule 11 CPC various other
points regarding suppression and concealment of facts, as also no prima facie case is
being made out against the defendant being the prior user, were also averred but
they were not pressed and thereof are not dealt with. Even otherwise, the entire
thrust of the learned Counsel for the defendant was on the rejection of the plaint on
the ground of cause of action clause pertaining to infringement and passing off.

7. The plaintiff had filed its reply and taken the plea that the concerned official Mr.
Bindra who was working earlier as a consultant of the plaintiff company had actually
ceased to be consultant and was employed as the Manager of the plaintiff company.
But on account of inadvertent typographical error, the residential address of Mr.
Bindra who was living at A-2/202, Printers Apartments, Sector-13, Rohini, Delhi-
110085 typed as the place of business of the plaintiff company while as by the time,
the petition was filed, the plaintiff had already shifted its business to A-35, Jhilmil
Industrial Area, Delhi -95. Accordingly, the plaintiff had been constrained to file an
application bearing IA No. 805/2009, wherein it was stated that the address of the
plaintiff may be permitted to be corrected as A-35, Jhilmil Industrial Area, Delhi-95.
Photographs in this regard were also placed on record by the plaintiff.

8. Applications under order 7 Rule 11 CPC as well as under Order 6 Rule 17 CPC
regarding change of address remained pending for almost two years and in the
meantime, when the applications were taken up for hearing, another application
bearing IA No. 11897/2010 was filed by the plaintiff after serving an advance copy to
the defendant. No reply to this application has also been filed. In the latest
application, under Order 6 Rule 17 read with Section 151 CPC, the plaintiff No. 2 had
stated that it has changed its place of business to A-62, Naraina Industrial Area,
Phase-I, Delhi to L-2, J.R. Complex, Gate No. 4, Village Mandoli, Delhi-93. A
notarized copy of the lease deed had also been placed on record. Thus it was
contended by the counsel for the plaintiff that the plea of the defendant that the suit
is liable to be rejected on the ground of lack of cause of action or being barred by
law, as it does not have any place of business in Delhi as required by Section 134(2)
is not sustainable anymore in law.

9. I have heard the learned Counsel for the parties on the applications and perused
the record.

10. The learned Counsel for the defendant has very vehemently contended that so
far as the present plaint is concerned, it is liable to be rejected on the ground that
the plaint itself originally showed the place of business of the plaintiff No. 2 as A-
2/202, Printers Apartments, Sector-13, Rohini, Delhi-110085, which was in fact the
residential address of one Mr. Bindra. The defendant has placed reliance on an
affidavit filed by it, after investigations as well as on the photographs. Another
subsidiary argument to this, which has been urged, by the learned Counsel for the
defendant is that the relief of infringement and passing off has been clubbed
together while as for the purpose of passing off the jurisdiction of a Court is to be
seen with reference to Section 20 of CPC. It is urged that none of the conditions of
Section 20 CPC is satisfied in the instance case.

11. The learned Counsel for the plaintiff has contested the submission of the
defendant regarding rejection of the plaint on this score. It has been urged by the
learned Counsel for the plaintiff that so far as the address of Mr. Bindra is concerned,
he was earlier working as a Consultant and the address of the plaintiff No. 2 was
given as the address wherefrom Mr. Bindra was functioning and in any case this non-
issue, on account of fact that the plaintiff has filed two successive applications,
intimating change of address of plaintiff No. 2 and therefore, the case being at the
threshold, the Court, in spite of going into super technicalities and rejecting the
plaint, may permit the plaintiff to carry out necessary amendments in the plaint
regarding the address of the plaintiff so as to decide the question of infringement of
passing off, as the case may be, on merits.

12. I have carefully considered the submission of the respective side.

13. There is no dispute about the fact that the law empowers the Court to reject the
plaint under Order 7 Rule 11 CPC on various grounds one of which is lack of cause of
action under Clause ‘a’ and the suit being barred by any law under Clause ‘d’.
14. The entire thrust of the learned Counsel for the defendant in the instant case is
that the address which is actually the address of one of its Consultant Mr. Bindra and
this fact has been got verified through an independent investigator and photograph
of the apartment has also been attached. This is admittedly not the place of business
of the plaintiff under Section 134(2) and hence the suit is barred by law.

15. I am afraid that this is not the correct procedure while considering the request of
the defendant to reject the plaint of the plaintiff. The law regarding rejection of plaint
is that while doing so, what the Court has to look is only the plaint and the
documents and not the averments made in the written statement or the documents
which have been filed by the defendant. The defendant in the instant case is placing
heavy reliance on the affidavit of its investigator and the photograph and alleged
that the averments made by the plaintiff in the plaint giving the place of its business
is not correct. That would be literally going into the question of truthfulness and
falsity of the place of business as averred in the plaint. Once this is done, it will be
going into the arena of proof which cannot be done while considering the application
under Order 7 Rule 11 CPC. Order 7 Rule 11 CPC does not envisage a kind of mini
trial. The provision of Order 7 Rule 11 CPC has to be considered in its proper
perspective by only referring to the averments made in the plaint and the document.
If done so, I feel that the submission of the learned Counsel for the defendant must
fail.

16. The second submission which has been made by the learned Counsel for the
defendant is that the plaintiff has claimed the relief of infringement and passing off in
the same suit which cannot be permitted to be done in view of various
pronouncements of our own High Court and the Apex Court in Dabur India Ltd. v.
K.R. IndustriesMANU/SC/2244/2008 : (2008) 10 SCC 595. This legal position
although is not disputed but so far as the question of clubbing of merely passing off
the relief and infringement is concerned, there cannot be a partial rejection of the
plaint. At best as and when the suit is put to trial, the plaintiff may succeed in
getting one relief or even if issue with regard to clubbing of these two reliefs is
framed, the suit may be dismissed on account of clubbing of both the reliefs together
if the same is not found to be in order. The plaintiff has in the cause of action clause
curiously has omitted to make any averment with regard to the relief of passing off.
Therefore, at best this question can be left open to be decided only after the parties
have adduced their respective evidence after framing of issues. Now the question
which arises for consideration is as to whether the application of the plaintiff for
brining on record changed address of the plaintiff’s business can be brought on
record or not. Both these applications have been opposed by the learned Counsel for
the defendant. It has been urged by the learned Counsel for the defendant that
these two applications have been filed only to cover up the lapse which the plaintiff
had committed originally by giving incorrect information.

17. I have considered this submission. The Apex Court in case titled Sangram Singh
v. Election Tribunal MANU/SC/0044/1955 : AIR 1955 SC 425 has clearly laid down
that law procedure is to advance the justice and not to be hyper technical so as to
trip a party. The exact observation of the Apex Court is as under:

A code of procedure is procedure, something designed to facilitate justice and further

its ends : not a Penal enactment for punishment and penalties; not a thing designed
to trip people up. Too technical construction of sections that leaves no room for
reasonable elasticity of interpretation should therefore be guarded against (provided
always that justice is done to both sides) lest the very means designed for the
furtherance of justice be used to frustrate it.

18. Keeping in view those observations, I feel that the Court should not adopt a
hyper technical attitude when the case is still at the threshold by depriving the
plaintiff to make amendment in the address of the plaintiff’s place of business.

19. I accordingly, am inclined to allow both these applications seeking amendment in

the plaint with regard to the place of business of the plaintiff to be carried out. Let an
amended memo of parties be filed within four weeks with an advance copy to the
defendant who may, if so desire, file the written statement to the same and so far as
I.A. No. 13220/2008 under Order 7 Rule 11 is concerned the same is rejected.

C.S.(OS) No. 1204/2008

Post the matter before the Joint Registrar on 01.11.2010.

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