1. By way of this writ petition, the petitioners have questioned legality of order dated 23.9.17 passed by the Additional District Judge No. 4, Jodhpur Metropolitan City in Civil Suit No. 139/17, whereby an application preferred by the petitioners raising objection against the jurisdiction of the court to entertain the suit, stands rejected.
2. The respondent-plaintiff has filed a suit under Section 134 & 135 of Trade Marks Act, 1999 (for short "the Act of 1999") seeking injunction against the violation of the trade mark and passing off. The prayer is also made for rendition of account of profit and delivery of incriminating materials including packing material, carry bags, block, sticker etc.
3. During the pendency of the petition, the petitioners preferred an application raising objection against the jurisdiction of the court on the ground that the dispute as raised falls within the definition of 'commercial dispute' in terms of section 2 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (for short "the Act of 2015") and therefore, being exclusively triable by the Commercial Court, cannot be entertained by the Civil Court.
4. The application stands rejected by the court below observing that in terms of the provisions of Section 134 of the Act of 1999, the suit with regard to infringement of registered trademark or for passing off is maintainable before the District Court having jurisdiction to try the suit and the value of the subject matter of the suit being not beyond the specified value so as to bring it within the definition of 'commercial dispute', the same cannot be treated to be commercial dispute triable by the Commercial Court.
5. Learned counsel appearing for the petitioners contended that from bare perusal of the plaint, it is discernible that the suit as framed involves a commercial dispute which can only be entertained by the Commercial Court having jurisdiction. It is submitted that the Act of 2015 is special Act, which has over riding effect over all enactments including the Act of 1999, and therefore, the suit preferred with the prayer relating to plaintiff's exclusive rights to the trade marks and profits, which taking into consideration the volume of business certainly exceeds the specified value of one crore, deserves to be rejected for want of jurisdiction.
6. On the other hand, learned counsel appearing for the respondent contended that the suit relating to the exclusive rights to the registered trade mark and passing off falls within the definition of 'commercial dispute' in terms of provisions of Section 2 (1) (c) (xvii) of the Act of 2015, but by virtue of provisions of Section 6 of the Act of 2015, the Commercial Court has jurisdiction to try all suits and applications relating to commercial dispute of specified value, which as per provisions of Section 2 (1) (i) shall not be less than one crore rupees or such higher value as notified by the Central Government. Learned counsel submitted that in respect of the right to trade mark, the market value as assessed by the plaintiff has to be accepted and the profit claimed on the basis of the rendition of account cannot be valued at this stage and thus, the order impugned passed by the court below rejecting the application does not suffer from any error warranting interference by this Court.
7. I have considered the rival submissions and perused the material on record.
8. Indisputably, the plaintiff has filed the suit for injunction under Section 134 and 135 of the Act of 1999 alleging infringement of registered trade mark and for passing off, which as per the provisions of Section 134 read with Section 135 of the Act of 1999 cannot be instituted in any Court inferior to District Court having jurisdiction. It is true that the dispute raised falls within the definition of 'commercial dispute', but there is nothing on record suggesting that the specified value of the subject matter of the commercial dispute in the suit exceeds rupees one crore. The value regarding the right to trade mark as estimated by the plaintiff has to be taken into account for the purpose of determining specified value and obviously the profit to which the plaintiff may be found entitled cannot be determined at this stage and thus, the court below has committed no error in rejecting the application preferred by the petitioners at this stage. It is not out of place to mention here that even as per the provisions of Section 26 (b) of the Rajasthan Court Fees and Suits Valuation Act, 1961 where the prayer relates to the plaintiff's exclusive rights to use, sell, print or exhibit any mark named book, picture, design or other thing and is based on an infringement of such exclusive rights, the fee payable shall be computed on the amount at which the relief sought is valued in the plaint or on rupees five hundred, whichever is higher and thus, the question of rejecting the valuation made by the plaintiff and presuming the specified value of the subject matter of the suit to be rupees one crore or more does no
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t arise. 9. It is always open for the defendants to dispute the valuation made in the suit by the plaintiff by filing a written statement thereto. Obviously, the contentious issue, if any, between the parties shall be determined by the court below at the appropriate stage, but in any case, from the perusal of the plaint, in no manner it can be said that the suit as framed was liable to be rejected or returned by the court below for want of jurisdiction. 10. In the result, the revision petition fails. It is hereby dismissed. No order as to costs.