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Tirumala Milk Products Private Limited, Represented by its Manager (Legal) S. Mukundh v/s Tirumala Dairy Limited, Rep by its Director Suresh Dnyanobarao Kute, Maharashtra & Others

    Review Application No. 2 of 2021 in A.No. 181 of 2021 in C.S. No. 190 of 2020

    Decided On, 06 September 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN

    For the Applicant: P.V. Balasubramaniam, G. Abraham Prabhu, Advocates. For the Respondents: A.R.L. Sundaresan, Senior Counsel, A.K. Balaji, Advocate.



Judgment Text

(Prayer: Review Application has been filed under Order XIV, Rule 8 of O.S. Rules read with Section 114 of C.P.C., praying to review the order dated 19.04.2021 passed in A.No.181 of 2021 in C.S.No. 190 of 2020 and consequently dismiss A.No. 181 of 2021.)

(The case has been heard through video conferencing)

1. The order of this Court dated 19/04/2021 in Application No. 181/2021 directing the Registry to return the plaint for the plaintiff to present the same before the appropriate Court having jurisdiction is sought to be reviewed in this application on the following grounds:

“A. The Order dated 19.04.2021 is liable to be Reviewed as there is an error on face of the record. The GST certificate filed before this Hon’ble Court along with the Note on Submissions was not looked into by this Hon’ble Court and as such there is a factual error. The GST certificate being a statutory document is an unimpeachable document and ought to have been considered. The said document clearly mentions the address of the sales offices of Petitioner’s company in Tamilnadu as being the address shown in the Plaint. This document has not been opposed by the Respondent herein. This be so, this Hon’ble Court ought to have considered the same and as such the recording that no document was filed in this respect is contrary to Record and as such the Order dated 19.04.2021 is liable to be Reviewed and the Jurisdiction of this Hon’ble Court be confirmed.

B. The Hon’ble Court failed to consider that the Petitioner herein, in its Counter to the Application to Reject the Plaint, had clearly set out the dates on which it had shifted its offices. The Respondent herein, despite such specific averments, did not file any Reply disputing these assertions. This be so, the issues raised, being factual, ought to have been relegated to Trial and not decided in the present Application. The Order dated 19.04.2021 is liable to be Reviewed on this Ground also.

C. In any event, the objection taken by the Respondent herein being purely technical the Hon’ble Court ought to have provided a further opportunity to substantiate the fact they were having sales office within the jurisdiction of this Hon’ble Court at the time of institution of the Suit. A decision passed after previding such further opportunity would have served the ends of Justice. The adverse inference drawn by the Hon’ble Court without providing such an opportunity, is contrary to Law and as such liable to be Reveiwed.”

2. The suit for permanent injunction filed alleging that the defendant is infringing the registered trade mark ‘TIRUMALA MILK’ and passing off. The suit filed in this Court claiming that the plaintiff is having its sales office in Chennai and voluntarily carrying on business within the jurisdiction of this Court. In the plaint, it is specifically averred that, in view of Section 134(2) of the Trademarks Act, 1999, the plaintiff is entitled to file the suit at Chennai.

3. The defendant stating that the plaintiff is not carrying on business in the address mentioned in the plaint and no cause of action has been arisen within the jurisdiction of this Court, filed Appln.No. 181/2021 to reject the plaint.

4. On considering the plaint a averment and the documents filed along with the plaint, this Court held that, the plaintiff has not produced document to show, they are carrying on business at Senthil Nagar, Chennai, where they claim to have their sales office. However, that is not the ground to reject the plaint as prayed in the application. Hence, ordered to return the plaint to be presented before the appropriate Court having jurisdiction.

5. In the said factual scenario, this application to review is filed. The learned counsel for the applicant/plaintiff submitted that, the oral submissions of the counsels in the Application No. 181/2021 was heard on 08/04/2021. This Court granted leave to the parties to file their written submission. Accordingly, the plaintiff filed the written submissions along with 3 documents in the Registry on 09/04/2021. The order was pronounced on 19/04/2021, however the GST certificate, Handing over letter issued by the plaintiff to the land lord of the Sales Office, Senthil Nagar and the receipt issued by the owner of the premises at Senthil Nagar were not considered by this Court to decide the application. Hence, there is error apparent on record. The objection taken by the defendant is purely technical, therefore, the Court ought to have given an opportunity to the plaintiff to substantiate the fact that the sales office of the plaintiff was within the jurisdiction of this Court at the time of instituting the suit.

6. Per contra, the Learned Senior Counsel appearing for the defendant submitted that, the plaintiff principal place of business is at Madhavaram Taluk, Tiruvallur District which is out side the jurisdiction of this Court. The defendant is carrying on business at Mumbai. To take advantage of Section 134(2) of the Trademarks Act, 1999, which gives and additional place of jurisdiction to file the suit, the plaintiff has shown its sales office at Senthil Nagar, Kolathur, Chennai-99 as the place of business. However, after receipt of the suit summons, the defendant engaged private detective and found that there is no such sales office of the plaintiff in the given address, hence, the application to reject the plaint was filed and this Court, after considering the documents filed along with the plaint and the pleadings found, it lacks territorial jurisdiction to hear the suit, hence order to return the plaint to be presented before the appropriate Court.

7. After hearing the oral submission on 08/04/2021, the Court permitted the parties to file only the written submission and not additional documents. The plaintiff cannot introduce new documents, without obtaining leave of the Court. Even assuming those documents are taken for consideration, these additional documents filed by the defendant does not provide any prima facie evidence to show that, the plaintiff was carrying on business in the given address at the time of filing the suit ie 13/8/2021.

8. The plaintiff, who claims to have its sales office at Senthil Nagar, Kolathur, Chennai-99, did not file any document to substantiate this claim along with plaint. Out of 24 documents filed along with the plaint, not a single document indicates that the plaintiff is having its sales office in the given address and carrying on business in that address. When the application for reject the plaint filed on this ground, the plaintiff came out with an explanation that, after filing the suit, they vacated the premises on 01/02/2021. No document to substantiate this plea also was filed along with the counter. Pointing out the lack of document to prima facie hold that the plaintiff was carrying on business within the jurisdiction of this Court at the time of filing the suit, this Court concluded as below:

“18. In this case, this Court finds that the plaintiff has not placed any material to show that they were carrying on business within the jurisdiction of this Court on the date of filing the suit. However, this is not a ground to reject the plaint under Order 7, Rule 11(d) of C.P.C., but to be returned for representing before the appropriate Court. Hence, the plaint is returned to be represented before the appropriate Court having jurisdiction to hear.”

9. The plaintiff, taking advantage of the permission granted to file written submission, after completing the oral submission, had filed 3 additional documents. No leave was obtained to file additional documents. The plaintiff has not come out with any plausible reason, why these documents were not filed along with the plaint or along with their counter in the Application filed to reject the plaint for want of jurisdiction.

10. In a civil suit, more particularly in the commercial dispute filed under the Commercial Courts Act, documents are supposed to be filed along with the plaint and to receive any additional documents thereafter, the leave of the Court is necessary. That apart, review is not a right for a person to re-agitate a settled dispute. It is a right under the statute to provide an opportunity for the aggrieved person to bring to the notice of the Court, which has passed an order or judgment any error apparent on record or if certain documents not within the knowledge of the applicant, which came to his knowledge or discovered, after the passing of decree or order or for any other sufficient reason.

11. Order XLVII Rule (1) of C.P.C reads as below:

“1. Application for review of judgment – (1) Any person considering himself aggrieved –

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.”

In this case, the review applicant does not come under any of the category enlisted under Order XLVII, Rule (1) CPC. The documents, which are now relied upon, are not discovered by the review applicant, after the pronouncement of the order. They are documents within their knowledge even before the filing of the suit. Therefore, the contention of the review applicant that these documents were kept annexed to the written submissions filed the day next to the date of reserving the matter for orders does not fall under the first two categories. To bring the review petition under the last category, there must be sufficient reason to review the order.

12. Assuming the plaintiff has filed application to receive the additional documents and the Court also deemed to have granted leave, out of these three documents two of them, namely, letter of the plaintiff to its erstwhile landlord and the receipt issued by the landlord no way indicate the plaintiff was “carrying on business” in the said address and it cannot be proof for carrying on business. The other document namely, the GST certificates indicates that the principal place of business of the plaintiff is at 200 Feet Road, Ponniammanmedu, Madhavaram Taluk, Tiruvallur District. 76 other places spread over entire state of Tamilnadu are shown as additional places of business. Out of these 76 additional places of business, No.125 7th Cross Street, Senthil Nagar, Kolathur, Chennai, also finds place at serial number 28.

13. The expression “carrying on business” is explained in Section 20 of the Civil Procedure Code. But, similar explanation is not found in Section 134(2) of the Trademarks Act, 1999. Nonetheless, the Courts have interpreted the expression “carries on business” not restricted to principal place of business but also branch offices. In the instant case, the plaintiff is dealing with milk and milk products which are sold in Tamilnadu and other states including Maharashtra. The GST certificate indicates that No.125, 7th Cross Street, Senthil Nagar, Kolathur is one of the place of business of the plaintiff.

14. The plaintiff has filed the suit before this Court exercising the option under Section 134(2) of the Trademarks Act, 1999 by showing its sales office at Senthil Nagar, Kolathur. Whether the plaintiff is carrying on business in the said address, is not a inferential fact from the GST certificate. It may even be a place where the milk products of the plaintiff is stored and transported to various retailers or it may be place of distribution or it may be a sale point. Unless business in actual sense is carried on, no other activity of the plaintiff will fall within the expression ‘carrying on business’. The expression ‘carrying on business’ does not mean a place, which is used as ‘post office’ or ‘godown’. It must be the place where decisions for the plaintiff business is taken. If the plaintiff say on the date of filing the suit, they had their sales office at Senthil Nagar, Kolathur, then to substantiate the said averment, it should have filed document to that effect along with the plaint. The plaintiff, without document, merely on statement, had asserted, its sales office is within the jurisdiction of this Court. When the same was challenged by the defendant in the application to reject to prove the contrary, no document filed till the matter was reserved for orders on 08.04.2021. Thereafter, the plaintiff had filed three documents in support of its Statement asserted in the plaint and wanted this Court to review the order dated 19/04/2021.

15. The best evidence could be the sale invoices raised by the plaintiff. These three document does not indicate the fact that, the address of the plaintiff shown in the plaint is the place, where the plaintiff was actually carrying on business. The discretion given to the litigant to choose to file the suit at his place of business under Section 134(2) of Trade Mark Act, 1999, is a right predomentialy coupled with the principle of forum conveniens. In Glaxo Operation U.K. Ltd., v. Rama Bhaktha Hanuman Candle & Camphore Works reported in (1950-2000) Supp (2) PTC 293 (Mad.), this Court, while considering analogous provision under the Copy Right observed that “a deliberate departure is made from Section 20 of the Code of Civil Procedure to enable the plaintiff to sue one who infringed his copyright in the Court within whose local limit he carried on business at the time of the institution or other proceedings. That such a Privilege extended to plaintiff to the prejudice of the defendant cannot be doubted. This additional factor will also suggest that the expression ‘carries’ on business is too wide to embrace the branch or branches where the business activities are carried’.”

16. In this context, it is beneficial to refer a passage in J.D. John and Others. Oriental Government Security Life Assurance Co. Ltd. Reported in 1928 SCC Online Mad. 347, wherein this Court has held as below:

“7. .. “the question whether the Oriental Government Security Life Assurance Co. Ltd., carries on business in Madras. It is no doubt true that the company has got an agency in Madras, but it is not stated that this agency has any directors here or any persons who form a kind of controlling Board in Madras or at least have some direction as regards the polices. The affidavit filed on behalf of the company is to the effect that so far as the Madras office is concerned, it has no independent discretion in the matter, but simply acts as a post office which receives applications or moneys and passes them to the Head office in Bombay, and that is the Head Office that issues all orders there being no vestige of discretion in the local office here to do anything. These facts are not contradicted and the question is whether it can be said that the Oriental Government Security Life Assurance Co. Ltd., carries on business in Madras. I think this question is really concluded by the judgment of Beasley, J. in Bombay Co. Ltd. v. Municipal Council Dindigul AIR 1929 Mad. 146 which was a suit filed by the Bombay Co. Ltd., Madras against the Municipal Council of Dindigul. It was there shown that the representatives of the Bombay Company in Dindigul had no discretion except receiving order and Sending them on. The ques

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tion was whether they carried on business in Dindigul to be taxed. It was held that they were not, and Beasley. J. in an elaborate review of the authorities states that there is no difference in principle between residence for purposes of either the Income tax Act or the Municipal Act or for purposes of jurisdiction. This judgment was affirmed by the Chief Justice and Madhavan Nair. J. in O.S. Appeal No. 6 of 1928 where all the authorities have been discussed by the learned Judges. I think that the facts disclosed in the present case in the affidavit, namely that the agency in Madras does nothing but acts as a post office forwarding proposal and sending money and not having any discretion in the matter either to conclude contracts or to vary them or to enter into them, the Oriental Government Security Life Assurance Company does not carry on business in Madras.” (emphasis added) 17. Unless a strict interpretation to the term ‘carrying on business’ is given, it is possible in a trader to sue wherever his products are sold and he may say that in that particular place, he is having business. The beneficial provision of Section 134(2) of the Trade Mark Act 1999, cannot be misused insuch a manner. By just referring an address within the jurisdiction of a particular Court, a claim that it is the place, where they carry on business, is not substainable. There must be semblance of business being carried on the said place. San such semblance, the suit filed is bound to be returned for being represented before the appropriate Court. This Court has exactly follow the said principle. Even after production of three new documents, there is no improvement in the case of the plaintiff. Hence, this review application is dismissed. No order as to cost.
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