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Judgment
Petitioner being the first diffident in a civil suit in O.S. No.2598/2019 filed by Respondent Nos.1 to 4 herein, is knocking at the doors of Writ Court
for assailing the order dated 12.04.2019, a copy whereof is at Annexure ‘E’ whereby the learned XVIIIth Additional City Civil Judge,
Bengaluru, having favoured the said Respondents’ IA No.3 has granted temporary injunctive relief against him. The contesting respondents having
been represented by their counsel, resist the writ petition.
Learned counsel for the petitioner argues that the impugned order is non est since the lis in the suit is a “Commercial Dispute†exclusively
triable by the Commercial Court established for Bengaluru Urban under the provisions of The Commercial Courts Act, 2015 (hereafter ‘ 2015
Act’ for short).
Learned Sr. Advocate, Shri Arun Kumar appearing for the counsel on record for the Respondent â€" plaintiffs, per contra, contends that the dispute
is not a “Commercial Disputeâ€, since it does not relate to any of the items enumerated under Sec.2(1)(c) (xvii) which speaks of Intellectual
Property Rights; secondly, a suit does not become triable by the Commercial Court merely because it involves a commercial dispute if the value of its
subject matter is below specified value as defined under Section 2(1)(i) r/w 12 of the Act; in any circumstance, the law heavily leaning in favour of
civil court’s jurisdiction not being barred, the writ petition is liable to be dismissed.
I have heard the learned counsel for the petitioner and the learned Sr. Counsel appearing for the respondents; I have perused the petition papers
and adverted to the decision cited at the Bar.
Product packaging or the look of a product has nowadays become just as essential as the product itself. A trade dress ordinarily is the visual
appearance of a product or its packaging which forms an important component as the source of the product itself; learned Author P.Narayanan in his
‘Trade Marks & Passing Off’ 6th Edition published by Eastern Law House Pvt. Ltd., Calcutta at p.980 writes: “Trade dress encompasses
the total image or overall impression created by a product or its packageâ€.
Hon’ble Justice J.D. Kapoor of High Court of Delhi in the case of Colgate Palmolive Company v. Anchor Health and Beauty Care Pvt. Ltd.,
2003 (27) PTC 478 observed that ‘Trade dress is the sole of identification of goods’ to their source or origin and a customer forms an overall
impression of the source of origin of the goods from the visual impression of its colour combination as well as from the shape of its container and
packaging. In the United States of America the trade dress has been given statutory protection under Section 43(a) of the Lanham Act, but trade
dress is not explicitly mentioned in our Trade Marks Act, 1999. However, the definition of a trademark under Section 2(zb) of the said Act includes
within its ambit ""shape of goods, their packaging and combination of colors"". Thus there is force in the submission of learned counsel for the petitioner
that Trade Mark is the genus and Trade dress is its species. This makes it clear that trade dress is included within the definition of a trademark and
consequently it is protected in the same manner as an unregistered trademark, since Trade dress under the 1999 Act does not require any formal
registration though it is connected with the reputation and the goodwill which is built with time.
The contention of the respondent side that the commercial dispute is triable by ordinary civil court unless the specified value of its subject matter is
not less than three lakh rupees, needs to be accepted because the suit of the respondents, going by the text & context of the plaint in general and its
prayer columns in particular, is principally for an injunctive relief; that at paragraph No.80 of the plaint, respondents have currently valued the subject
matter of their suit at Rs.2,000/- and have paid a Court Fee of Rs.150/- presumably under Section 26 of KCF & SV Act, 1958; apparently, they have
not stated anything about specified value of the subject of the “Commercial Disputeâ€.
In KALLA YADAGIRI vs. KHOTADAL REDILIY, 1999 (1) ALT 211 FB, the High Court of Andhra Pradesh has crisply stated as under:
“What decides the jurisdiction with regard to a particular case is the nature of claim as brought. The plaintiff is bound to assess the relief he claims
on the basis of the benefit he seeks to obtain by filing the suit… In a suit for injunction simplicitor, it is the value of the relief claimed and not on the
value of the property involved… suffice it to say that the proper method is to value for the Court fees first and take that value for the purpose of
jurisdiction, for, value will control the matter for Court fees and jurisdiction. It is not the value of the thing affected that settles the value of relief
sought, but it is the value of the relief sought, which determines the jurisdiction “Subject matter†is not the same thing as property. Subject matter
is the substance for adjudication and it has reference to the right which the plaintiff seeks to enforce and the valuation of the suit depends upon the
value of the subject matter thereof…â€
The High Court of Delhi in the case of MRS. SONI DHAWE VS M/S. TRANS ASIAN INDUSTRIES EXPOSITIONS PVT. LTD., AIR 2016
DELHI 186 at has observed as under:
“The Commercial Courts has not been enacted to interfere with the Court Fees Act or Suits Valuation Act … Section 12 of the Commercial
Courts Act providing for determination of specified value as defined in Section 2(1)(i) thereof is not intended to provide for a new mode of determining
the valuation of the suit for the purpose of jurisdiction and court fees. It would be incongruous to hold that while for the purpose of payment of court
fees the deemed fiction provided in the Court Fees Act for determining the value of property is to apply but not for determining the specified value
under the Commercial Courts Act… Section 12 of the Commercial Courts Act has to be read harmoniously with the Court Fees Act & Suits
Valuation Act…â€
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 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 VS. M/S AMERICAN AIR FILTERS COMPANY INC & 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.
The jurisdiction of the Courts to try all suits of civil nature is very expansive as is evident from the plain language of Sec.9 CPC, 1908. This is
because of the principle ubi jus ibi remedium; it is only where cognizance of a specified type of a suit is barred by a statute either expressly or
impliedly that the jurisdiction of the civil court would be ousted to entertain such a suit; the general principle is that a statute excluding the jurisdiction
of the civil courts should be construed stricto sensu; law abhors ouster of jurisdiction of civil courts; the English and Indian decisions in this regard
galore and need hardly to be mentioned.
In the above circumstances, this writ petition being devoid of merits, is dismissed, with liberty to the petitioner to seek framing of an issue as to suit
being of specified value and therefore civil court lacks jurisdiction.
The observations made hereinabove being confined to the disposal of this writ petition on the basis of material now placed on record, shall not
influence the decision making on such an issue if and when raised.
No costs.