At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE JAYANT NATH
For the Plaintiff: Chander M. Lall, Sr. Advocate, H. Rajeshwari, Nancy Roy, Swapnil Gaur, Kumar Ghitranshu, Advocates. For the Defendant: Sudhir Chandra, Sr. Advocate, Zahid Shaikh, Nilesh Nayak, Advocates.
IA No. 17273/2018
This application is filed seeking condonation of delay of 282 days in filing of the replication.
Learned senior counsel for the defendant relies upon an order of a Coordinate Bench of this court in CS(COMM) 158/2017 titled as Kent RO Systems Ltd. & Anr. Vs. R.K. Goyal, dated 01.12.2017 to submit that a replication is also a pleading and the limitation period of 120 days would therefore apply. Since the period of 120 days is a mandatory provision, the present replication filed after 282 days cannot be taken on record.
The application is accordingly dismissed.
1. This application is filed by the defendant under Order 7 Rule 11 CPC seeking rejection of the plaint. It is the plea of the applicant that the plaint has been filed seeking a decree of permanent injunction to restrain passing off of the trade dress, infringement of copyright, rendition of accounts, damages, etc. It is pleaded that the regarding the relief of infringement of copyright, mandatory provisions have not been pleaded in the plaint. It is pleaded that clearly there is no description given in the plaint of the author of the copyright and as to how the plaintiff claims title to the ownership of the copyright.
2. I have heard learned senior counsel for the parties.
3. Learned senior counsel for applicant/defendant has relied upon a judgment of a Coordinate Bench of this court in the case of Tech Plus Media Pvt. Ltd. vs. Jyoti Janda & Ors., 2014 Indlaw (Del) 2834 to contend that it was incumbent upon the plaintiff to disclose the author of the work and the agreement under which the author has made the plaintiff the owner of the said copyright. Based on this, it is pleaded that the plaintiff has to amend the plaint inasmuch as the said relief of infringement of copyright is not available to the plaintiff. Reliance is also placed on the statement of truth filed by the plaintiff to state that they have clearly stated that all the necessary documents and facts have been brought on record and hence, they cannot now seek to rely upon other documents and facts to claim the ownership of the copyright.
4. Learned senior counsel for the plaintiff has refuted the contentions. He has relied upon para 20 of the plaint to state that the necessary material averments have been made in the plaint.
5. I may look at para 20 of the plaint which reads as follows:-
“20. That, without prejudice to the submissions made above, The Plaintiff is the owner of the copyright in the artistic work in the drawings of the sugarcane harvester Austoft 4000 Series which is marketed and sold under the brand mark CASE-IH Austoft. The Plaintiff submits that the said artistic work was developed for the Plaintiff by its employees using its own resources. The artistic work being the 2-dimensional drawings in respect of the sugarcane harvester CASE IF Austoft-4000 series have devolved upon the Plaintiff through a series of amalgamations, mergers and acquisitions as stated earlier.......”
6. Hence, a clear averment is made in the plaint that the artistic work in question was developed for the plaintiff by its employee using its own resources.
7. Reference may also be had to Section 17 of the Copyright Act which reads as follows:-
“17. First owner of copyright.— Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:
(c) in the case of a work made in the course of the author's employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;..........”
8. A clear averment is made in the plaint that the employees of the plaintiff are the author of the work but the plaintiff is the first owner of the copyright.
9. The settled legal position is that for the purpose of adjudication of an application under Order 7 Rule 11 CPC, the court has to only look at the plaint and presume that the averments made in the plaint are correct.
10. Reference may be had to the judgment of this court in Tilak Raj Bhagat vs. Ranjit Kaur, 2012(V)AD (Delhi) 186 which held as follows:-
“5. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff.”
11. To the same effect are the judgments of the Division Bench of this Court in the case of Indian City Properties Ltd. Vs. Vimla Singh & Ors. 198(2013) DLT 432 and in the case of Inspiration Clothes & U vs. Collby International Ltd., 88(2000) DLT 769.
12. Reference may also be had to a judgment of the Supreme Court in the case of Hardesh Ores Pvt. Ltd v. M/s Hede and Company 2007 (7) SCALE 348, noted as follows:
“21. The language of Order VII Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that “law within the meaning of clause (d) of Order VII Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint, in their entirety must be held to be correct.”
12. Hence for the purpose of considering an application under Order 7 Rule 11 CPC only the averments made in the plaint have to be taken presuming them to be correct on the face of it along with the documents filed in support of the plaint.
13. In my opinion, in the present case if it is presumed that the averments are correct, it cannot be said that the suit is filed without any cause of action. A clear cause of action in terms of Section 17 of the Copyright Act is spelt out.
14. That apart, the suit is filed seeking multiple reliefs including the relief of permanent injunction for passing off of the trade dress. There is no plea raised that this plea in the plaint also attracts Order 7 rule 11 CPC. It is well established that a plaint cannot be rejected in part by a civil court, while exercising its powers under Order 7 Rule 11. The rule was enunciated in Roop Lal Sathi v. Nachhattar Singh Gill, 1982 (3) SCC 487, where it was held by the Supreme Court that only a part of the plaint cannot be
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rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. The relevant para noted as follows: “27. ............... Where the plaint discloses no cause of action it is obligatory upon the Court to reject the plaint as a whole under Order VII, Rule II (a) of the Code, but the rule does not justify the rejection of any particular portion of a plaint: Mulla's Civil Procedure Code, 13th Edn., Vol. 1, p. 755.......” 15. Merely because the plaintiff has a weak case or could have done a better task in drafting the pleadings would not be a ground to reject the plaint. It would be open for the defendant to raise these issues at an appropriate stage in the course of the suit. 16. The application is accordingly dismissed.