Bajaj Resources Limited & Anr vs Goyal Herbals Private Limited & Ors

Valmiki J. Mehta, J

IA No.8739/2017 (u/O. VI R.17 CPC filed by plaintiff) and IA No.9810/2017 (u/O.VII R.10 CPC filed by defendants)

1.(i) This is a suit filed by two plaintiffs. Plaintiff no.1 is Bajaj Resources Limited. Plaintiff no.2 is Bajaj Corporation Limited. The subject suit is a suit

for infringement of the trademark, passing off, dilution, unfair competition and damages etc. Plaintiff no.1 is the owner of the subject trademark.

Plaintiff no.2 is a licensee for user of the trademark.

(ii) There are five defendants in the suit. Defendant no.1 is a company M/s. Goyal Herbals Private Limited. Defendant no.1 is marketing the

impugned products which are manufactured by the defendant no.4 M/s. Gaurav Herbal Udyog. Defendant nos. 2, 3 and 5 are also the selling agents

of the products being manufactured by the defendant no.4.

The disputes between the parties pertain to the claim of the plaintiffs that there is infringement by the defendants of the plaintiff’s trademark.

The subject trademark is a composite trademark in the form of a shape of bottle with its label containing the word mark Bajaj Almond Drops along

with the trade-dress as a whole containing the word mark Bajaj Almond Drops. Almond hair oil is sold by the plaintiffs. The disputes arise on account

of the claim of the plaintiffs that the defendants are selling almond hair oil in bottles with a label containing the word mark Balaji Almond Drops and

which act of the defendants is pleaded to violate legal rights of the plaintiffs in its trademark.

In the present/existing plaint, the paragraphs with respect to cause of action pleaded with respect to territorial jurisdiction is para 56 and this para 56

reads as under:-

“That this Court has necessary territorial jurisdiction to entertain and try the present suit under Section 134 of the Trade Marks Act, 1999 and

Section 62 of the Copyright Act, 1962 as the plaintiff No.1 has its registered office within the jurisdiction of this Hon’ble Court and also carries on

business and/or works for gain within the territorial jurisdiction of the Hon’ble Court. In view of above, this Hon’ble Court has jurisdiction to

try, entertain and dispose of the present suit.â€​

Therefore the plaint as it stands on date when the application for amendment of the plaint was filed by the plaintiff, the plaintiff claimed existence of

territorial jurisdiction of this Court as per Section 134 of the Trademark Act and Section 62 of the Copyright Act on account of plaintiff No.1 carrying

on business at Delhi. The suit therefore was filed not on the basis of arising of cause of action wholly or in part as per Section 20(c) CPC, but only on

account of Sections 20(a) and (b) CPC read with Section 134 of the Trademark Act and Section 62 of the Copyright Act viz pertaining to the

residence and carrying on of the business of the plaintiff no.1 company at Delhi.

The defendants have filed the subject application under Order VII Rule 10 CPC for return of the plaint by pleading that neither of the defendants as

per the plaint and memo of parties are stated to be carrying on business in Delhi and therefore this Court would not have territorial jurisdiction because

the ingredients of Section 20(c) CPC do not exist in the existing para 56 of the plaint. The defendants then plead that the plaintiff no.2 company has its

branch office at Varanasi and consequently in accordance with the ratio of the judgment of the Supreme Court in the case of Indian Performing

Rights Society Limited vs. Sanjay Dalia and Another (2015) 10 SCC 161 the Courts at Varanasi, U.P. would have territorial jurisdiction.

It is seen that as per the existing plaint so far as the plaintiff no.2 is concerned, its rights are asserted as per the reliefs claimed in the suit on

account of plaintiff no.2 company being a licensee of the plaintiff no.1. Plaintiff no.2 however does not have as per the memo of parties any office at

Delhi and the address of the plaintiff no.2 as per the memo of parties is at Old Station Road, Sevashram Chouraha, Udaipur, Rajasthan- 313001.

Therefore para 56 of the plaint relates to, and as per the language of the para 56 of the plaint, only to plaintiff no.1. The suit therefore even in the

absence of plaintiff no.2 which is said to have a branch office at Varanasi in U.P., can be continued by plaintiff no.1 solely with respect to the relief

claim of infringement of the subject trademark. I may note that plaintiffs however dispute that the plaintiff no.2 has any branch office at Varanasi in

U.P., and which aspect is a disputed question of fact which would require trial.

Learned counsel for the plaintiffs argues, and I agree with his argument, that even if as per the plaint which presently stands there is no cause of

action qua territorial jurisdiction qua plaintiff no.2 company, however, since the suit can continue with respect to the plaintiff no.1 company with

respect to cause of action of infringement of the trademark, therefore, by adding fresh paras with respect to territorial jurisdiction by making factual

averments required by Section 20(c) CPC, plaintiff no.1 is in fact only adding a cause of action in the suit, and with respect to which suit the Court

already has territorial jurisdiction with respect to plaintiff no.1 of cause of action on infringement of the trademark by the defendants.

In terms of the amendment application filed by the plaintiffs, and which is presently being disposed of, the following paras 29 and 56 are sought to

be added/amended and these paras 29 and 56 read as under:-

“29. That the defendant No.1 is a company incorporated in the year 2000 under the Companies Act, 1956 having its registered office at J-12/15-F

(KHA), PIPLANI KATRA, BAULIA, NATI, IMLI, VARANASI, UTTAR PRADESH-221007 and branch office at D-25, D Block, Sector 2,

Noida, Uttar Pradesh 201301 and also at 104, Ist Floor, Vishwadeep Building, District Centre, Janakpuri, Delhi- 110058. The defendant No.1 is

engaged inter alia in the similar business of marketing of hair care, personal care, oral care products viz. hair oil, tooth powder etc. The defendant

No.1 appears to be a company incorporated under the Companies Act, 1956, but the plaintiffs reserve their right to add/amend parties if required or

directed by this Hon’ble Court. Defendant Nos.2 and 3 are the directors of defendant No.1 company.

xxxxx xxxxx xxxxx

That this Court has necessary territorial jurisdiction to entertain and try the present suit under Section 134 of the Trade Marks Act, 1999 and

Section 62 of the Copyright Act, 1962 as the plaintiff No.1 has its registered office within the jurisdiction of this Hon’ble Court and also carries on

business and/or works for gain within the territorial jurisdiction of the Hon’ble Court. That defendant No.1 also has an office in Delhi, within the

territorial jurisdiction of this Hon’ble, located at 104, Ist Floor, Vishwadeep Building, District Centre, Janakpuri, Delhi â€" 110058, and is carrying

on business and/or working for gain in Delhi from the said office. That the impugned products of defendants are also being stocked and/or sold in

Delhi within the territorial jurisdiction of this Hon’ble Court. The same is, in fact, apparent from defendants’ own website www.himratna.com,

the relevant extracts of which are reproduced hereinbelow-

“GHPL distribution width and penetration is acknowledged and is a leverage able strength. Our distribution network covers almost

every town with a population of over 50,000 of Northern India.

Rural Sales & Distribution

GHPL parallel rural sales and distribution network ranks among the top three in the industry and contributes 24% to the company’s

topline. Their infrastructure comprises ----- direct distributors as well as ------ super distributors, catering to ----- small stockiest and -----

van markets. A dedicated team of Territory Sales Executives and Pilot Sales Representatives distribute GHPL’s as well as alliance

brands through this vibrant network. GHPL’s distribution width and penetration is acknowledged as one of the best in the industry and

is a leverageable strength. Every month, 56 million consumer packs are sold to about 1.8 million households through 1.6 million retail

outlets spread across the country. GHPL’s distribution network covers almost every Indian town with a population of over 20,000. The

chart below depicts GHPL’s distribution network in the urban & rural markets: Thus, I out of every 10 Indians is a GHPL consumer.â€​

“...................The introduction of new brands continued & the distribution network of the company spread to overall India. Today Goyal

Herbals Pvt Ltd covers 28 states in India..............â€​

That it is clearly apparent from the above extracts of defendants’ website that their products are commercially stocked and/or sold in Delhi within

the territorial jurisdiction of this Hon’ble Court and therefore, the entire cause of action for passing off, apart from causes of action for

infringement of trademark and copyright, has also arisen in Delhi within the jurisdiction of this Hon’ble Court. In view of the aforesaid, this

Hon’ble Court has jurisdiction to try, entertain and dispose of the causes of action for infringement of trademark, infringement of copyright and

passing off under Section 20 of Code of Civil Procedure, 1908. That additionally, this Hon’ble Court also has jurisdiction to try, entertain and

dispose of cause of action for infringement of trademark and infringement of copyright under Section 134 of Trade Marks Act, 1999, and Section 62

of Copyright Act, 1957 respectively.

In view of above, this Hon’ble Court has jurisdiction to try, entertain and dispose of the present suit.â€​

Learned counsel for the defendants has placed reliance upon a judgment of Division Bench of this Court in the case of Archie Comic Publications

Inc. vs. Purple Creations Pvt. Ltd. & Ors. 172 (2010) DLT 234 to argue that once this Court does not have territorial jurisdiction then the application

of the defendants under Order VII Rule 10 CPC must be decided first and the plaint returned and consequently there is no scope for hearing and

allowing of the amendment by adding new paras 29 and 56 to the plaint as is sought to be got done through IA No.8739/2017 under Order VI Rule 17

CPC.

In my opinion the ratio of the judgment of the Division Bench in Archie Comic Publications (supra) relied upon by the defendants will not help the

defendants because the Division Bench in that judgment has not decided the issue that if otherwise the Court continues to have jurisdiction as per the

existing plaint to try one cause of action then by amendment another cause of action and another plaintiff cannot be added. The ratio of the Division

Bench in Archie Comic Publications (supra) case will only apply of amendment not being allowed when otherwise the Court does not have territorial

jurisdiction on all of the causes of actions pleaded as per the existing averments in the plaint. I have already observed above that the present suit can

continue with respect to plaintiff no.1 in spite of averments of defendants being presumed to be correct as made in the application under Order VII

Rule 10 CPC with respect to plaintiff no.2 having a branch office at Varanasi in U.P, inasmuch as, one of the cause of action and consequent relief

claimed by the plaintiff no.1 pertains to infringement of the trademark of the plaintiffs by the defendants, and with respect to which cause of action

this Court has the territorial jurisdiction in view of Section 134(2) of the Trade Marks Act. In my opinion therefore the ratio of the Archie Comic

Publications (supra) case does not help the defendants because the ratio of the judgment will only apply if this Court did not have territorial jurisdiction

at all whereas in the present case this Court has territorial jurisdiction qua the plaintiff no.1 with respect to cause of action and relief pertaining to

cause of action of infringement.

In view of the aforesaid discussion, the application under Order VI Rule 17 CPC filed by the plaintiff is allowed and plaintiff is allowed to add

paras 29 and 56 to the plaint as stated above as by the amendments allowed only an additional cause of action is added and an additional plaintiff being

plaintiff no.2 is added. In terms of these amended paras plaint would now have an additional cause of action with respect to the claim of passing off of

the plaintiffs on account of the defendants selling its goods at Delhi.

I may finally note that at the stage of allowing of the amendment application the Court does not examine the truth and falsity of the factual

averments, and the averments sought to be added are ordinarily presumed to be correct, with liberty to the other side to dispute the same as per the

amended written statement which would now be filed on account of allowing of amendments to the plaint.

Accordingly, IA No.8739/2017 filed by the plaintiffs for amendment of the plaint is allowed. Amended plaint is taken on record.

Application under Order VII Rule 10 CPC filed by the defendants being IA No.9810/2017 is rendered infructuous and disposed of as such.

CS (Comm) No.1564/2016

Defendants will file their amended written statement within a period of six weeks from today along with additional documents. Plaintiffs will file

replication within four weeks thereafter along with relevant documents in its power and possession.

Parties are put to notice of the amended provisions of CPC as made applicable by The Commercial Courts, Commercial Division and Commercial

Appellate Division of High Courts Act, 2015 whereby at the time of admission/denial of documents, the admission/denial must be in terms of detailed

endorsements as required by the amended provisions of CPC applicable to commercial suits.

Pleadings of the respective parties must not contain any general denial and if a fact is stated to be incorrect then the detailed facts must be

mentioned that as to why a particular fact is denied and why stated to be incorrect.

Parties will file affidavits of admission/denial of documents as per the amended provisions of CPC as applicable to commercial courts along with

their pleadings and matter be listed before the Joint Registrar for marking of exhibits to the documents on 16th January, 2018.

After completion of pleadings and admission/denial is complete the Joint Registrar will list the matter in Court and any of the parties is at liberty to

file an application for summary judgment in terms of Order XIII A CPC so that when the matter comes up for framing of issues pleadings of such an

application seeking summary judgment by either of the parties can be heard and disposed of in accordance with law.

The date fixed for issues will also be the date for case management hearing.