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Akhil Bhartiya Grahak Panchayat v/s Bindumadhav

Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

    Appeal From Order No. 94 of 2010 With Civil Application No. 7685 of 2010

    Decided On, 02 April 2014

    At, In the High Court of Bombay at Aurangabad


    For the Appellant: V.D. Sonwane, Advocate. For the Respondent: A.N. Sabnis, S.P. Shah, Advocates.

Judgment Text

1. This Appeal is filed against the judgment and order dated 28-05-2010, in Reg. Civil Suit No. 1 of 2010, which was pending in the court of District Judge, Aurangabad. The plaint of the appellant-original plaintiff is returned by the District Court, Aurangabad for presentation before appropriate court.

2. Both sides are heard finally.

3. The suit was filed by the appellant-plaintiff for relief of declaration and injunction against the respondent. A declaration was sought that the plaintiff is owner of the association, named and styled as 'AkhilBharitya Grahak Panchayat'. It is the case of the plaintiff that monogram 'Garud' (Eagle) as described in the title clause of the suit belongs to plaintiff-Association. Relief of injunction was claimed to prevent the defendant from using aforesaid name of the association and monogram by the defendant.

4. It is the case of the plaintiff that plaintiff-Association was registered under the Societies Registration Act, 1860, in the year 1974 at Delhi and since then it has been using aforesaid name and monogram. It is contended that the plaintiff works for unity of consumers and for their protection. It is contended that the registered office of the plaintiff-Association is situated at Delhi, but field of operation of the plaintiff is spread all over India.

5. It is the case of the plaintiff that its Secretary Shri Arun Deshpande is doing business in Aurangabad and is authorized to file the suit in Aurangabad Court. It is contended that the defendant has started using aforesaid name and monogram when he is not authorized to do so and so suit is required to be filed. It is contended that for sometime the defendant was the President of the plaintiff-Association and subsequently he was appointed as 'Sanrakshak' also. It is also contended that though the defendant had contributed in the movement started by Association for consumers, at present he is old and even not a member of the Association.

6. It is the case of the plaintiff that when new body of the Association came in existence in the year 2006, defendant wrote a letter to new office bearers to congratulate them and accepted the election. It is contended that behind back of the Association, in the year 2001, the defendant got registered aforesaid title and monogram under the Copyright Act, 1957 (hereinafter referred to as 'Act of 1957' for short) in is own name and he has shown himself as owner of the title and monogram. It is the case of the plaintiff that from prior to year 2001, plaintiff Association has been using aforesaid title and monogram, so the defendant cannot claim himself as the owner of the title and the monogram.

7. The defendant filed written statement and denied aforesaid contentions made by the plaintiff-Association with regard to ownership of title and monogram. It is the case of the defendant that he invented monogram and he gave aforesaid name to the Association and he is owner of both, the title name and the monogram. It is the case of the defendant that under Act of 1957 he has registered both name and monogram and they belong to him. The defendant filed application under Section 9A of the Code of Civil Procedure (hereinafter referred to as 'CPC' for short) and requested the trial Court to frame preliminary issue in respect of territorial jurisdiction. In the application, he contended that on the basis of pleadings in the plaint it cannot be said that the Court at Aurangabad has jurisdiction to entertain and try the suit. On this point both sides were heard and preliminary issue was framed. The District Court gave opportunity to both sides to lead evidence, but both sides filed pursisstating that they do not want to lead oral evidence. After hearing both sides, the District Court held that it has no territorial jurisdiction to entertain and try the suit. The District Court has considered not only the pleading in the plaint, but it has considered other contentions with regard to correspondence also.

8. Learned counsel for appellant placed reliance on many reported cases and they are with regard to Section 62 of the Act of 1957. In view of law developed, not only the provisions of Section 62 of Act 1957 but the provisions of Section 20 of CPC also needs to be keep in mind.

9. In the case of Begum Sabiha Sultan Vs. Nawab Mohd. Mansur Ali Khan and others reported in (2007) 4 Supreme Court Case, 343, the Apex Court has observed that 'for consideration of matter for the use of order VII Rule 10 of the CPC the Court is expected to look into the averments in the plaint in meaningful manner to find out real intention behind the suit'. This observation needs to be keep in mind while considering the object behind provision of Section 62 of the Act 1957. Section 62 of Act 1957 is as under:

'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.'

10. In the case of GlaxoOperations UK Ltd. Middlesex (England) and others Vs. Samrat Pharmaceuticals Kanpur reported in AIR 1984 Delhi 265 the Apex Court has observed that Section 62 of the Act of 1957 is not a bar for allowing jurisdiction but it describes additional ground as laid down in Section 20 of CPC. In the case of DhodhaHouse Vs S.K. Maingi reported in (2006)9 SCC 41, the Apex Court has observed that the Court shall not readily presume the existence of jurisdiction upon the district Court under Section 62(2) of the Act 1957, which has not been conferred by statute. In that case it was held that 'Residence' of company would ordinarily be where its registered office is situated.

11. Observations made by the Apex Court in the cases cited supra show that pleadings in the plaint needs to be considered as basis for ascertaining the territorial jurisdiction. The record can be referred to with reference to pleadings. Present suit was filed by Association and in the plaint it is mentioned that the Association is registered at Delhi and address of the Association is shown as Delhi. In the plaint it is mentioned that Shri Arun Deshpande, Secretary lives in Aurangabad, and he carries on business at Aurangabad so the suit is filed in Aurangabad.

12. Learned counsel for appellant submitted that District Court ought to have considered the record produced by the plaintiff, which is to the effect of some correspondence was made from Aurangabad and even one book was published from Aurangabad. He submitted that the District court ought to have considered the record, which is to the effect that defendant had held a conference at Aurangabad and there is contention that he committed infringement of copyright of the plaintiff at Aurangabad. It is pertinent to note that the District Court has held that there is no record with the plaintiff to show that infringement of plaintiff's copyright, took place in Aurangabad. Admittedly, the defendant was the President of the Association for many years and his contribution for this movement was major. He was arranging the programmes and attending the functions all over India including at Aurangabad. Even the plaintiff has accepted that contribution of the defendant was major in the movement of the Association.

13. It is already observed that the plaintiff-Association has come with a case that its Secretary Mr. Arun Deshpande is doing business at Aurangabad and his residence is at Aurangabad so the suit is filed at Aurangabad. Section 62 of the Act 1957 refers to plaintiff, and it is the case of the plaintiff that it is registered-Association and its office is shown at Delhi in the Registration Certificate. In view of the circumstances, the observations made by the Apex Court in the cases cited supra and particularly case of Dhodha House (Supra) it needs to be seen as to whether from Aurangabad activities of Association were controlled on the date of the suit. Only because one or two programmes were arranged in the past, when defendant was President of the Association, it cannot be said that such activity is covered under Section 62(2) of the Act of 1957 and it can be said that Association was doing business at Aurangabad. As per record, office bearers of the plaintiff-Association are from all over India. The record shows that correspondence was made with office of Registrar of Firms and Societies, Delhi by the plaintiff's office from Delhi. Thus, there is record to show that office of the plaintiff-Association from Delhi is controlling the activities of the Association. There is no record with the plaintiff to show that it has established local offices at other places like Aurangabad and from there also activities of the Association are controlled.

14. Learned counsel for the appellant placed reliance on few more cases viz Union of India and another Vs. Shri Ladulal Jain reported in AIR 1963 Supreme Court 1681 and International Association of Lions Club Vs. National Association of Indian Lions and ors. reported in 2006 Bom. C.R. 18. In the first case, the Apex Court held that suit was tenable where head office of Railway was situated. In the Second case, this Court held that place where plaintiff is carrying on business and resides is relevant and not the place of defendant. There cannot be any dispute over the propositions made in both cases. Similar observations are made in the case of MaganlalSavani and another Vs. Rupam Pictures (P) Ltd. & others reported in 2000(4) Bom C.R. 400.

15. Learned counsel for the appellant also placed reliance the citations viz MeharSingh Vs. Deepak Sawhny and another reported in 1999(1) Bom. C.R. 107, Ramesh B. Desai and others Vs. Bipin Vadilal Mehta and others reported in AIR 2006 Supreme Court, 3672 and Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd. Vs Jagruti Industries and another reported in 2008(5) Bom. C.R. 284. These cases are on the point of taking decision on preliminary issue and stage for it. Even if propositions laid down in the aforesaid cited cases are considered and it is held that the mixed question of facts and law is involved, it cannot be said that the District Court ought not to have decided the issue at initial stage. Opportunity was given to both sides by the District Court to lead evidence, but no evidence was led by plaintiff. However, on the basis of above circumstances, preliminary issue can safely be decided. So, these cases are not helpful to the plaintiff.

16. It has already been observed that provisions of Section 20 of CPC are also to be used though additional provision is made in favour of plaintiff by Section 62(2) of Act 1957. In ordinary circumstances the plaintiff can file suit in the Court from D

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elhi. Aforesaid circumstances and pleadings show that the defendant is residing at Pune. If he is using title and monogram, he must be using it from his place of residence and business. Thus, it was open to the plaintiff to file a suit at Delhi or at Pune. It also needs to be keep in mind that the defendant has registered the title name and monogram in his name and he has shown himself as owner of both title name and monogram. In view of this circumstances, prima facie it needs to be presumed that he is author or original creator of both these things. The plaintiff wants to prove that it has been using title name and monogram from prior to 2001 and there are few admitted facts in respect of defendant, which are already mentioned. 17. In view of these circumstances and for convenience of both the sides, the Court from Pune would be proper Court for filing suit. The District court has considered the relevant circumstances and also aforesaid provisions of law. This Court thus is not inclined to interfere in the decision of the District Court. 18. In the result, appeal stands dismissed. 19. In view of dismissal of appeal, nothing further survives for consideration in civil application No. 7685 of 2010, the same also stands disposed of.