HSIL LIMITED vs. MAX CERAMIC INDUSTRIES AND ANR

$~4,5&6
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(COMM) 1082/2016 & IAs No.9787/2016 (under Order XXXIX
Rules 1&2 CPC), 14190/2016 (under Order XXXIX Rule 2A CPC),
15316/2016 (under Order I Rule 10 CPC), 15317/2016 (under
Order VII Rule 10 CPC), 15318/2016 (under Order VII Rule 11
CPC), 917/2017 (under Order XXXIX Rule 4 CPC), 13696/2017
(under Section 151 CPC), 14013/2017 (under Order VI, Rule 17
CPC) & 14088/2017 (under Order XI Rule 1(5) CPC)

HSIL LIMITED ..... Plaintiff
Through: Mr. Manav Gupta, Ms. Prabhsahay
Kaur, Ms. Esha Dutta & Mr. Sahil
Garg, Advs.
Versus
IMPERIAL CERAMIC AND ANR ..... Defendants
Through: Ms. Meera Kaura Patel & Ms. Lata
Singh, Advs.

AND

+ CS(COMM) 1087/2016 & IAs No.9818/2016 (under Order XXXIX
Rules 1&2 CPC), 15291/2016 (under Order VII Rule 10 CPC),
15292/2016 (under Order VII Rule 11 CPC) , 914/2017,
13692/2017 (under Section 151 CPC), 14014/2017 (under Order XI
Rule 1(5) & 14015/2017 (under Order VI Rule 17 CPC)

HSIL LIMITED ..... Plaintiff
Through: Mr. Manav Gupta, Ms. Prabhsahay
Kaur, Ms. Esha Dutta & Mr. Sahil
Garg, Advs.
Versus
GUJRAT CERAMIC INDUSTRIES ..... Defendant
Through: Ms. Meera Kaura Patel & Ms. Lata
Singh, Advs.

AND

CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 1 of 21



+ CS(COMM) 1088/2016 & IAs No.9822/2016 (under Order XXXIX
Rules 1&2), 15293/2016 (under Order VII Rule 10 CPC),
15294/2016 (under Order VII Rule 11 CPC), 915/2017 (under
Order XXXIX Rule 4 CPC), 13694/2017 (under Section 151 CPC),
14011/2017 (under Order VI Rule 17 CPC) & 14018/2017 (under
Order XI Rule 1(5) CPC).

HSIL LIMITED ..... Plaintiff
Through: Mr. Manav Gupta, Ms. Prabhsahay
Kaur, Ms. Esha Dutta & Mr. Sahil
Garg, Advs.
Versus
MAX CERAMIC INDUSTRIES AND ANR ..... Defendants
Through: Ms. Meera Kaura Patel & Ms. Lata
Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
O R D E R
% 13.02.2018

1. The plaintiff has instituted all these suits for permanent injunction
restraining the defendant/s in each of the suits from using the trade mark
„HINDUSTAN VITREOUS‟ or „H VITREOUS‟ or any other mark that is
deceptively similar to the trade mark of the plaintiff on its products or
which infringes the trade mark of the plaintiff and from thereby passing
off their goods as that of the plaintiff and for ancillary reliefs of delivery
and costs.
2. Each of the suits was entertained and vide ex parte ad interim
orders therein the defendant/s in all the three suits were restrained as
sought and a commission issued to visit the premises of the defendants
and to seize the infringing goods.
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 2 of 21



3. The counsel for plaintiff on enquiry states that the plaint in all the
three suits is identical. This Court, for the purpose of this order, has
referred to the plaint and the applications in CS (Comm.) No.1082/2016.
4. It is not in dispute that the defendant/s in each of the suits are
situated at Thangadh in Gujarat.
5. It is also not in dispute that the plaintiff, besides these three suits
had also instituted CS (Comm.) No.1382/2016 against another set of
defendants, also situated at Thangadh in Gujarat and the plaint in CS
(Comm.) No.1382/2016 was also identical to the plaint in the present three
suits and similar ex parte ad interim orders were issued in CS (Comm.)
No.1382/2016 as well.
6. The defendants in CS (Comm.) No.1382/2016 filed application
under Order VII Rules 10&11 of the Code of Civil Procedure, 1908 (CPC)
for return/rejection of the plaint for the reason of not disclosing this Court
to be having territorial jurisdiction to entertain the suit and which
applications came to be adjudicated vide judgment reported as HSIL
Limited Vs. Marvel Ceramics 2017 SCC OnLine Del 6783 and the
applications were allowed and the plaint ordered to be returned/rejected;
rather than stating herein the reasons which prevailed with this Court in
Marvel Ceramics supra, it is deemed appropriate to set out hereinbelow
th
the relevant paragraphs of the order dated 30 January, 2017 supra as
under:-
“5. Return/rejection of the plaint on the ground of lack of
territorial jurisdiction is sought contending (i) that the territorial
jurisdiction of this Court, in para 35 of the plaint has been
invoked, referring to Section 134 of the Trade Marks Act, 1999
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 3 of 21



and not on the basis of any cause of action having accrued within
the jurisdiction of the Court; (ii) that the plea of the plaintiff is
also of allegedly infringing goods being sold outside Delhi; (iii)
the plaintiff has expressly pleaded in para 35 of the plaint that the
plaintiff does not have a branch/subordinate office in Gujarat
where the defendants are located; (iv) however the plaintiff itself,
at page 429 of its documents, in the document titled „Corporate
Information‟ has shown having a „Regional Office‟ at
Ahmedabad; (v) attention is also drawn to page 429 listing
EVOK Stores, whereunder also mention is made of Gujarat
Zodiac Square, S.G. Highway, Bodakd, Ahmedabad; (vi) the
plaintiff has thus, in para 35 of the plaint falsely pleaded not
having any branch/subordinate office in Gujarat where the
defendants are located; (vii) that even otherwise, the plaintiff
admittedly has its registered office at Kolkata; (viii) that the
Division Bench of this Court in para 14 of Ultra Home
Construction Pvt. Ltd. Vs. Purushottam Kumar Chaubey (2016)
227 DLT 320 has held that where the cause of action has accrued
neither at the place of principal office nor at the place of
subordinate office but at some other place, the plaintiff can be
deemed to carry on business at the place of its principal office
and not at the place of its subordinate office; and, (ix) thus the
plaintiff herein, even if has a subordinate office at Delhi, though
the same is also disputed, cannot invoke Section 134 at Delhi and
can at best invoke the same at Kolkata.
6. The counsel for the plaintiff has in response contended,
(i) that though the plaintiff at page 429 supra has shown regional
office at Ahmedabad but thereunder has not given any address
and has given only a telephone number and an e-mail address
which are just „helpline numbers‟ and otherwise the plaintiff has
no office at Ahmedabad or in Gujarat; (ii) the plaintiff has
already filed an application under Order VII Rule 14 of the CPC
in CS(COMM) No.1082/2016 titled HSIL Vs. Imperial Ceramic ,
CS(COMM) No.1087/2016 titled HSIL Vs. Gujarat Ceramic
Industries and CS(COMM) No.1088/2016 HSIL Vs. Max
Ceramic Industries which were also filed along with this suit, to
place on record clarification issued in November, 2016 on the
website of the plaintiff in this regard; (iii) thus the plea in the
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 4 of 21



plaint, of the plaintiff not having a branch / subordinate office in
Gujarat is correct; and, (iv) that EVOK Stores are Home Stores
and are of a different entity than the plaintiff and are not Stores
of the plaintiff.
7. With respect to the contention of the defendants /
applicants qua para 14 of Ultra Home Construction Pvt. Ltd.
supra, attention is drawn by counsel for plaintiff to page 799 of
th
the documents, being a copy of the order dated 8 July, 2016 in
FAO(OS)(COMM) No.35/2016 titled HSIL Ltd. Vs. Oracle
Ceramic , where the Division Bench has inter alia held as under:-
“3. With respect to the impugned order dated May
11, 2016, having heard learned counsel for the
parties we find that the law culled out by the learned
Single Judge with respect to the decision of the
Supreme Court reported as AIR 2015 SC 3479
Indian Performing Rights Society Ltd. Vs. Sanjay
Dalia .
4. As per said decision if plaintiff has no
presence in the territory where the offending activity
is carried on, remedy of territorial jurisdiction with
reference of Section 134 of the Trade Marks Act,
1999 can be availed of. Though there is no positive
view of a negative fact in the plaint, but there is no
admission that the plaintiff i.e. the appellant has
presence in Rajkot (Gujarat), where the alleged
offending activity is being carried on.
5. Accordingly, we set aside the impugned order
dated May 11, 2016. We declare that the three suits,
the plaints where of have been directed to be
returned, shall continue in Delhi for the reason as
pleaded in the plaint, there would be territorial
jurisdiction in this Court. Of course, if the
defendants plead and can prima-facie show that the
plaintiff has presence in Rajkot, of the kind
contemplated by law, plea of lack of territorial
jurisdiction can be raised.”

CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 5 of 21



On the basis of the aforesaid order it is contended that it is of a
date subsequent to Ultra Home Construction Pvt. Ltd. supra and
has held that the plaintiff can sue at Delhi if has a subordinate
office at Delhi.
8. I have considered the aforesaid contentions.
9. The document at page 429 of the plaintiff‟s own
documents appears to be photocopy of a page out of Annual
Report of the plaintiff. The counsel for the plaintiff however
controverts and draws attention to the index of the documents
wherein at serial no.10, against the pages 124 to 430, the
description given of the document is “Copy of various advertising
brochures of the Plaintiff Company” and states that page 429 is
not part of Annual Report of plaintiff but is a part of an
advertising brochure of the plaintiff. However there does not
appear to be any merit in the said contention. The document at
page 429 from its preceding two pages which are a „Proxy Form‟
and „Attendance Slip‟, is clearly a part of the Annual Report of
the plaintiff. Even otherwise it, defies logic as to why in an
advertising brochure, „Corporate Information‟ would be given. A
further flipping of pages shows page 429 to be a part of the
Annual Report of the plaintiff for the year 2014-15 commencing
from page 242.
10. The counsel for the plaintiff also, after studying his file
agrees that the statement earlier made of page 429 supra being
from the advertising brochure and the description in the list of
documents of the said document as advertising brochure, is
erroneous and the document is indeed the Annual Report. The
counsel for the plaintiff is however not carrying the original
thereof with him.
11. Once it is not in dispute that page 429 supra is indeed a
part of the Annual Report of the plaintiff for the year 2014-15,
then the plaintiff which on enquiry is informed to be a public
listed company, cannot to its shareholders and to the public at
large represent that it has a regional office and a retail outlet at
Ahmedabad and in the Court take a stand that it has no branch /
subordinate office or retail outlet at Ahmedabad, contending the
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 6 of 21



said regional office to be not a brick and mortar office but only a
telephone number and e-mail address and the retail outlet to be
of some other entity. The plaintiff, in such an event, would be
guilty of violation of several guidelines of Securities and
Exchange Board of India (SEBI), Stock Exchange Listing
Requirements and best practices advised for the public listed
companies. Moreover the plaintiff, in the plaint, while making a
unequivocal statement of not having a branch / subordinate office
in Gujarat, did not so clarify and which may have resulted in the
suit being not even entertained and has given this explanation
now only when defendants / applicants have drawn attention to
page 429. The plaintiff, by following such practice, is also not
found to have approached the Court with clean hands and has
disentitled itself to any discretionary relief.
12. The second of the aforesaid contentions of the counsel for
th
the plaintiff, on the basis of the order dated 8 July, 2016 supra
of the Division Bench, is also not found to have any merit. The
Division Bench therein has not considered the question, whether
Section 134 can be invoked at the place of the subordinate office
if no cause of action has accrued therein, as has been considered
in detail in Ultra Home Construction Pvt. Ltd. In fact Ultra
th
Home Construction Pvt. Ltd. , which was pronounced on 20
January, 2016, is also not found to have been considered in the
th th
order dated 8 July, 2016. The Division Bench in order dated 8
July, 2016 cannot thus be said to have held contrary to Ultra
Home Construction Pvt. Ltd. as indeed it could not have. It may
also be noted that what is not for consideration before the Court
cannot constitute the ratio of the order of the Court. It has been
held in Union of India Vs. Dhanwanti Devi (1996) 6 SCC 44,
Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. (2003) 2
SCC 111, Kalyan Chandra Sarkar Vs. Rajesh Ranjan (2005) 2
SCC 42, Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate
(2005) 2 SCC 489 and Inderpreet Singh Kahlon Vs. State of
Punjab (2006) 11 SCC 356 that a judgment is a precedent on
what falls for adjudication and not what can be logically deduced
th
or inferred therefrom. The Division Bench, in order dated 8
July, 2016, was not considering whether Section 134 can be
invoked at the place of plaintiff‟s subordinate office if cause of
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 7 of 21



action has not accrued there, as Ultra Home Construction Pvt.
Ltd. has done in detail. A judgment will constitute binding
precedent in law, when an issue is raised, the statute and binding
precedent cited, case thoroughly debated and properly
considered by Court and then finding recorded. Where, an earlier
judgment binding on the Bench which has enunciated a principle
of law is not considered, such a decision will be per incuriam,
binding parties thereto alone and will not constitute a binding
precedent to be followed. Reference in this regard may be made
to Draupadi Devi Vs. Union of India (2004) 11 SCC 425 and S.
Nagaraj Vs. B.R. Vasudeva Murthy (2010) 3 SCC 353. Thus,
th
even if it be held that the Division Bench in order dated 8 July,
2016 has found the plaintiff entitled to invoke Section 134 against
the defendant not situated within the jurisdiction of this Court
and against whom no cause of action had accrued to the plaintiff
within the jurisdiction of this Court, for the reason of the plaintiff
having a subordinate office within the jurisdiction of this Court,
the same would only be res judicata for the purposes of the suit in
which it was so decided and would not be a binding precedent to
be followed in other cases filed by the plaintiff. Moreover, the
th
Division Bench in the order dated 8 July, 2016 has not decided
the issue of territorial jurisdiction finally and left it to be decided
after the stage of filing of the written statement.
13. The counsel for the plaintiff at this stage draws attention
th
to page 794 being the order dated 25 May, 2016 in the same
th
appeal which was disposed of on 8 July, 2016 to contend that
the Division Bench while issuing notice thereof considered the
said aspect. It is further contended that the order of the Single
Bench which was for consideration before the Division Bench
was purely based on Ultra Home Construction Pvt. Ltd. .
14. The same would in my view not make any difference. The
th
final order dated 8 July, 2016, by which the appeal was
disposed of, cannot as aforesaid be said to be laying down any
law contrary to Ultra Home Construction Pvt. Ltd. for it to be
th
even said that there is any conflict in the order dated 8 July,
2016 and the judgment in Ultra Home Construction Pvt. Ltd.
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 8 of 21



15. The counsel for the applicants/defendants in this regard
draws attention to M/s. Allied Blenders & Distillers Pvt. Ltd.
Vs. R.K. Distilleries Pvt. Ltd. 2016 SCC OnLine Del 4097 but
need to refer whereto which is a dicta of a Single Judge of this
Court is not felt.
16. The counsel for the plaintiff at this stage insists on
th
reading out paras 1 to 4 of the order dated 25 May, 2016 but
which only record the contentions of the counsel for the appellant
before the Division Bench and after recording which notice was
issued. The same is an ex parte order and merely because notice
of the appeal was issued does not allow the counsel for the
plaintiff to rely on his own contentions recorded therein and to
th
cite the same as precedent. As far as the final order dated 8
July, 2016 is concerned, I have already re-produced the relevant
part thereof hereinabove and which cannot be read as laying
anything contrary to what has been held in Ultra Home
Construction Pvt. Ltd.
17. The request of the counsel for the plaintiff at this stage, to
refer the matter to the Division Bench owing to a conflict between
th
the order dated 8 July, 2016 supra and Ultra Home
Construction Pvt. Ltd. cannot be accepted. I may notice that a
Single Judge of this Court in RSPL Ltd. Vs. Mukesh Sharma
229 (2016) DLT 651 expressed reservations qua the view taken in
Ultra Home Construction Pvt. Ltd. though observing the same to
be binding on the Single Judge. The same Division Bench which
had pronounced Ultra Home Construction Pvt. Ltd. , in appeal in
RSPL Ltd. Vs. Mukesh Sharma MANU/DE/1862/2016, in rather
strong words, deprecated such expression of views by the Single
Judge.
18. The counsel for the plaintiff has not controverted that as
per para 14 of Ultra Home Construction Pvt. Ltd., and the
relevant part whereof is re-produced hereinbelow,
“The fourth case is where the cause of action neither
arises at the place of the principal office nor at the
place of the subordinate office but at some other
place. In this case, the plaintiff would be deemed to
carry on business at the place of its principal office
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 9 of 21



and not at the place of the subordinate office. And,
consequently, it could institute a suit at the place of
its principal office but not at the place of its
subordinate office.”

this Court does not have territorial jurisdiction. Thus,
irrespective of whether the plaintiff has a regional office in
Gujarat or not, this Court as per the dicta in Ultra Home
Construction Pvt. Ltd. and on the averments in the plaint does
not have jurisdiction to entertain the suit and the applications
have to succeed.
19. The applications are thus allowed.
20. The plaint is returned/rejected.”

7. The plaintiff herein and who was the plaintiff in Marvel Ceramics
also, preferred FAO(OS) (Comm.) No.45/2017 against the order of
return/rejection of the plaint and which appeal was dismissed vide
judgment reported as HSIL Ltd. Vs. Marvel Ceramics 2017 SCC OnLine
Del 11571 (DB).
8. The counsel for the defendant/s has today in Court handed over
th
order dated 11 January, 2018 of the Supreme Court of dismissal of SLP
(C) No.36323/2017 preferred by the plaintiff against the judgment of the
Division Bench. Thus, as far as Marvel Ceramics supra is concerned, the
order of return/rejection of plaint has attained finality.
9. The defendant/s in these suits, represented through the same
counsel who was the counsel for the defendants in Marvel Ceramics supra
also, had about the same time as in Marvel Ceramics , filed applications
under Order VII Rules 10&11 of the CPC in these suit as well for
return/rejection of the plaint in these suits as well for the reason of not
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 10 of 21



disclosing this Court to be having territorial jurisdiction to entertain these
suits as well. However the plaintiff having suffered an order of
return/rejection of the plaint in Marvel Ceramics , has filed applications
for amendment of the plaint in these suits, to amend paras 35 and 36 of the
plaint, which as existing are as under:-
“35. The cause of action for the present suit arose for
the first time in January, 2016 when the Plaintiff
received information about the illegal acts of the
Defendants. The sale of the offending and infringing
product is a continuous one and thus the cause of
action is a continuous one and continues to subsist on
each day that the infringing products are sold, until an
order of injunction as prayed for is passed by this
Hon‟ble Court.”
36. This Hon‟ble court has the jurisdiction to try and
entertain the present suit in terms of Section 134 of the
Trade Marks Act, 1999 as the Plaintiffs is located at
Delhi. The Plaintiff does not have a branch/subordinate
office in Gujarat, where the Defendants are located.
Thus, this Hon‟ble Court has jurisdiction to try and
entertain the present suit.”
to as under :-
“35. The cause of action for the present suit arose for
the first time in January 2016 when the Plaintiff
received information about the illegal acts of the
Defendants. The cause of a further arose on 31.10.2017
and 14.11.2017 when the Plaintiff came to know that
all the infringing goods found in Delhi are being
manufactured in Thangadh, Gujarat by different
manufactures. The sale of the offending and infringing
product is a continuous one and thus the cause of
action is a continuous one and will continue to subsist
on each day that the infringing products are sold, until
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 11 of 21



an order of injunction as prayed for is passed by this
Hon‟ble Court.”
“36. This Hon‟ble Court has jurisdiction to try and
entertain the present Suit in terms of Section 134 of the
Trademarks Act, 1999, as the Plaintiffs is located at
Delhi. The Plaintiff does not have a branch/subordinate
office in Gujarat, where the Defendants are located.
This Hon‟ble Court has jurisdiction to try and entertain
the resent Suit in terms of Section 20 CPC as there is a
strong apprehension that the Defendants have been
selling the impugned products within Delhi. It is
submitted that the apprehension that the Defendants
are selling/offering for sale the impugned products
within the jurisdiction of this Hon‟ble Court is redible
and imminent. Thus, this Hon‟ble Court has
jurisdiction to try and entertain the present Suit.”

10. Needless to state that the applications for amendment are opposed
by the counsel for the defendants. It was inter alia the contention of the
th
counsel for the defendants on 19 December, 2017 that since on the
averments in the plaint as existing this Court had no territorial jurisdiction
also to entertain the suit as held in Marvel Ceramics supra, this Court did
not have jurisdiction also to consider the application for amendment of the
plaint and which amendment would in turn vest territorial jurisdiction on
this Court. Reliance in this regard was placed by the counsel for the
defendants on Archie Comic Publications Inc. Vs. Purple Creations Pvt.
Ltd. 172 (2010) DLT 234 and Just Lifestyle Pvt. Ltd. Vs. Advance
Magazine Publishers Inc. (2013) 198 DLT 306 (DB). However on the
th
request of the counsel for the plaintiff on 19 December, 2017, hearing
was adjourned to today.
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 12 of 21



11. The counsels have been heard.
12. The counsel for the defendants today, besides the judgments
th
aforesaid cited on 19 December, 2017, has also referred to Pandit
Rudranath Mishir Vs. Pandit Sheo Shankar Missir AIR 1983 Patna 53
DB and Mst. Zohra Khatoon Vs. Janab Mohammad Jane Alam AIR
1978 Calcutta 133 (DB).
13. The Division Bench of the Calcutta High Court in Mst. Zohra
Khatoon supra held that granting an amendment postulates an authority of
the Court to entertain the suit and making an order for amendment therein;
but where the Court inherently lacks jurisdiction to entertain the suit, it
cannot make any order for amendment to bring the suit within its
jurisdiction; in that case, the court will be exercising jurisdiction which it
has not. Reliance was placed on earlier judgment of Madras, Nagpur,
Assam and Allahabad High Courts. The Division Bench of the High
Court of Patna in Pandit Rudranath Mishir supra also held to the same
effect and further held that in such a case, the Court is bound to return the
plaint to be presented to the proper Court in which the suit ought to have
been instituted and after the plaint is returned for presentation to the
proper Court, the plaintiff can amend the plaint and represent it to the
same Court. Reliance was also placed on earlier judgments of the
Calcutta High Court.
14. The Division Bench of this Court in Archie Comic Publications
Inc. supra held that if a plaint is completely bereft of any pleading which
are the jurisdictional facts, the Court will not have jurisdiction to proceed
in that suit or even to allow an application seeking amendment; thus, a
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 13 of 21



completely unconscionable plaint which does not reveal any fact which
confers a jurisdiction on a Court may not vest the jurisdiction with the
Court to even allow an amendment of the same. It was however further
held that if it is a case of unclear or ambiguous pleading, the same may be
allowed to be amended to clarify the earlier pleaded facts till the same
does not give rise to addition of a new cause of action or pleading new
facts. In Just Lifestyle Pvt. Ltd. supra also, amendment of the plaint inter
alia to vest the Courts at Delhi with territorial jurisdiction was refused
inter alia holding that the issue of jurisdiction of the Court, as per
Mohannakumaran Nair Vs. Vijayakumaran Nair (2007) 14 SCC 426, is
required to be determined with reference to the date on which the suit is
filed and entertained and not with reference to a future date and that the
amendment sought would not clothe the Court with territorial jurisdiction
to try the suit; the counsel for the plaintiff is however right in his
contention that other reasons for denying the amendment were also stated.
15. I have however enquired from the counsel for the defendants,
whether not it is the settled principle of law that an application for
amendment of the plaint, even if filed after an application under Order VII
Rule 11 of CPC for rejection of the plaint, has to be decided first, even if
makes the application under Order VII Rule 11 of CPC infructuous, as
held by me in Anita Kumari Gupta Vs. Ved Bhushan 2014 (143) DRJ
576 (DB).
16. The counsel for the plaintiff also though post-commencement of
dictation has in this regard referred to Wasudhir Foundation Vs. C. Lal &
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 14 of 21



Sons (1991) 45 DLT 556 and Hari Bhagwan Sharma Vs. Badri Bhagat
Jhandewalan Temple Society (1985) 87 DLT 68.
17. The counsel for the defendants though agrees but states that a
contrary view was taken in Patasibai Vs. Ratanlal (1990) 2 SCC 42.
18. I am unable to agree. Supreme Court in Patasibai supra is not
found to have laid down any precedent in this context and is found to have
merely observed that the amendment was clearly an afterthought for the
obvious purpose of averting the inevitable consequence of rejection of the
plaint on the ground that it did not disclose any cause of action or raise
any triable issue.
19. I have however wondered whether an application under Order VII
Rule 11 of the CPC on the ground of the plaint not disclosing a cause of
action or suffering from some other technical defect viz. of valuation,
court fee paid or the claim therein being barred by any law, can be equated
with an application under Order VII Rule 10 of the CPC on the ground of
the Court not having territorial jurisdiction. This becomes important
because of the consistent view of the High Courts mentioned above
including of this Court that when the Court lacks territorial jurisdiction, it
cannot even entertain an application for amendment of the plaint and
which amendment would vest territorial jurisdiction in the Court.
Reference may also be made to Hans Raj Kalra Vs. Kishan Lal Kalra
ILR (1976) II Delhi 745 and Anil Goel Vs. Sardari Lal (1998) 75 DLT
641 though in the context of pecuniary jurisdiction.
20. Having considered the matter, I am of the opinion that the
judgments holding that application for amendment of plaint, even if filed
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 15 of 21



to defeat the pending application under Order VII Rule 11 of the CPC, has
to be heard first, will not extend to a case where averments contained in
the plaint as existing does not disclose the Court to be having territorial
jurisdiction and amendment is sought to incorporate the pleas to disclose
the Court to be having territorial jurisdiction. I have reached the said
conclusion relying on the dicta of the Supreme Court in Harshad Chiman
Lal Modi Vs. DLF Universal Ltd. (2005) 7 SCC 791 holding that a Court
has no jurisdiction over a dispute in which it cannot give an effective
judgment and even an agreement between the parties vesting jurisdiction
in the Court which it otherwise does not have, is void as being against
public policy. It was further held that where a Court has no jurisdiction
over the subject matter of the suit by reason of any limitation imposed by
statute, it cannot take up the cause or the matter and an order passed by a
Court having no jurisdiction is a nullity. It was yet further held that
neither waiver nor acquiescence can confer jurisdiction upon a Court,
otherwise incompetent to try the suit. It was yet further held that where a
Court takes upon itself to exercise a jurisdiction it does not possess, its
decision amounts to nothing and a decree passed by a Court having no
jurisdiction, is non est and its invalidity can be set up whenever it is
sought to be enforced as a foundation for a right, even at the stage of
execution or in collateral proceedings; a decree passed by a Court, without
jurisdiction is a coram non judice .
21. Thus, if the plaint in these suits as it exists, does not disclose this
Court to be having territorial jurisdiction, then the only option for this
Court is to return/reject the plaint and this Court would not have
jurisdiction to even consider the application of the plaintiff for amendment
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 16 of 21



of the plaint and which amendment, if allowed, would disclose the plaint
as having the necessary averments for this Court to have jurisdiction to entertain the suit.
22. The counsel for the plaintiff has contended that the plaintiff, even
after return/rejection of the plaint, would be entitled to sue the defendants
afresh in this Court only by making the averments in the fresh plaint to be
filed, averments which are sought to be made by way of amendment in
these pending suits. It is argued that once it is so, this Court should not,
on account of technicality, compel the plaintiff to follow the said
procedure. It is yet further argued that compelling the plaintiff to follow
the said procedure would also result in undue advantage to the defendants
and prejudice to the plaintiff. It is stated that the Commissioners
appointed in the suits have seized the infringing goods and if the plaint is
returned/rejected, the defendant/s would be entitled to remove the seals
from the seized goods and appropriate the same and by the time the
plaintiff files fresh suits, the defendant/s may arrange their affairs in a
manner so as to not be caught.
23. Though undoubtedly so but once the law is found to be as aforesaid,
I cannot, in the name of “technicalities being not allowed to come in the
way of justice” violate the law or decide contrary to law. Moreover, the
plaintiff itself is to blame for the position in which it is today. The
plaintiff cannot have any premium on its own fault and negligence if any
in pleading the requisite facts. It cannot also be lost sight that the plaintiff
having its principal/registered office in West Bengal has invoked the
jurisdiction of this Court instead of suing the defendants at the place
where the defendants are carrying on their business, obviously with an
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intent to have an unfair advantage over the defendants. Judicial notice can
be taken of the fact that it is always inconvenient to persons/entities as the
defendant/s to fight a litigation at a far off place, where they have no base
and the cost and inconvenience in defending the litigation itself becomes a
reason for such defendant/s to concede to the claim of the plaintiff, even if
they have an arguable defence thereto.
24. The counsel for the plaintiff then contends that the process of
splitting up of the plaintiff company into three companies with their
principal/registered office at Delhi is underway and likely to be completed
soon. It is suggested that if the hearing is adjourned, the plaintiff by that
time will complete the arrangement already underway and then the
plaintiff would also be entitled to invoke Section 134 of the Trade Marks
Act, 1999.
25. Not only is this no justification for so waiting but once it has been
held that the amendment sought to the plaint cannot be entertained, unless
this Court is found to have territorial jurisdiction, so awaiting would also
not serve any purpose.
26. As far as the question, whether the averments contained in the
plaint in these suits disclose this Court to be having territorial jurisdiction
is concerned, as aforesaid, it is not in dispute that the plaint in these suits
are in identical language to the plaint in Marvel Ceramics supra and the
order of return/rejection of the plaint in which case, for the reason of the
averments in the plaint not disclosing this Court to be having territorial
jurisdiction, has already attained finality, as aforesaid. Once it is so, this
Court cannot, on the same pleas, take a different view than taken in
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 18 of 21



Marvel Ceramics supra. The principle of parity also applies. The Courts
cannot be seen as forming different opinions in different suits on the same
facts.
27. The counsel for the plaintiff then reiterates the arguments which
were raised by him also in Marvel Ceramics supra. It is contended that
the plaintiff is carrying on business at Delhi and is not carrying on
business at Gujarat and the documents on the basis of which I have in
Marvel Ceramics supra held the plaintiff to be carrying on business did
not reflect the correct state of affairs and have since been rectified and the
requisite changes have also been made on the website of the plaintiff.
28. Having already dealt with the said pleas in Marvel Ceramics supra,
need to detail the same or to deal therewith again, is not felt. As per the
existing plaint and documents, this Court does not have territorial
jurisdiction.
29. The counsel for the defendants, at this stage, states that the plaintiff,
in the plaint has not even pleaded carrying on business at Delhi and has
merely pleaded being located at Delhi. It is argued that the requirement of
Section 134 of the Trade Marks Act is not of being located at a place but
of either actually or voluntarily residing or carrying on business or
personally working for gain therein.
30. Merit is found in the aforesaid contention also. Para 36 of the plaint
already reproduced hereinabove merely states that the plaintiff is located
at Delhi and does not have a branch/subordinate office in Gujarat where
the defendants are located. As far as the statement that the plaintiff does
not have a branch/subordinate office in Gujarat where the defendants are
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 19 of 21



located is concerned, it was in Marvel Ceramics supra found to be false.
The plaintiff nowhere in the plaint has pleaded carrying on business at
Delhi. I have in Radico Khaitan Ltd. Vs. Nakshatra Distilleries &
Breweries Ltd. (2017) 241 DLT 48 also held that Indian Performing
Rights Society Ltd. Vs. Sanjay Dalia (2015) 10 SCC 161 cannot be read
as requiring the subordinate office of the plaintiff to be exactly in the same
district in which the State may have been divided for the purpose of
territorial jurisdiction of the Courts and that the reference to the word
“place” therein has to be construed as the State and that even if the cause
of action may have arisen in any particular district of the State and not in
the district or city where the subordinate office of the plaintiff is situated,
the plaintiff would be required to institute the suit at the place where the
defendant is carrying on business.
31. The counsel for the plaintiff has also contended that though the
plaintiff at the time of institution of the suits did not know but has now
learnt that the plaintiff is accepting orders from Delhi and is supplying
goods at Delhi.
32. The aforesaid argument is of no avail, inasmuch as there are no
such averments in the plaint as existing and if at all there is any merit in
the said contention, the plaintiff in the subsequent suit/s, if any instituted
within this Court, would be entitled to take the said pleas.
33. Axiomatically, the applications of the plaintiff for amendment of
the plaint are dismissed and the applications of the defendant/s for
return/rejection of the plaint are allowed.

CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 20 of 21



34. The plaint in all the suits is returned/rejected.
35. I refrain from imposing costs on the plaintiff.

RAJIV SAHAI ENDLAW, J.
FEBRUARY 13, 2018
„pp/bs‟
CS(COMM) Nos.1082/2016, 1087/2016 & 1088/2016 Page 21 of 21