(Prayer: Application is filed under Order XIV Rule 8 of O.S.Rules Read with Order 7 Rule 11(4) of the Civil Procedure Code, 1973, prayed to reject the Plaint in C.S.No.190 of 2020 and impose heavy cost.)
1. The commercial suit is filed to restrain the defendants from infringing the plaintiff-s registered trademark namely Thirumala/Thirumala Milk and from passing off the business of the plaintiff in the milk and dairy products by using the plaintiff’s trademark Thirumala/Thirumala Milk products or any other mark, which is deceptively similar.
2. The Plaint sought to be rejected by the defendants on the ground that the plaintiff does not have any sales office within the jurisdiction of the High Court, Madras. No cause of action arose within the jurisdiction of the High Court, Madras. By misrepresentation and by placing false materials, documents and records the plaintiff has played fraud on the Court.
3. The Plaint averments in brief are that, the plaintiff’s company is a leading Dairy Company in India established in the year 1988. It is the firm present in major states of India such as Tamilnadu, Karnataka, Andhra Pradesh, Telangana, Kerala, Maharashtra and West Bengal. The plaintiff’s company uses the trademark ‘Thirumala’ as a stand alone word, ‘Thirumala Milk’ and ‘Thirumala’ has written as stylised form. The proprietary rights in the trade mark of ‘Thirumala’ has been well acknowledged and statutory protection in India by way of trademark registrations. The wide range of the milk and dairy products offered by the plaintiff, the Thirumala Milk/Thirumala trade mark per se, solely and exclusively associated with the plaintiff across all segments of the trade and public.
4. The grievance against the defendant is that in the beginning of June 2020, plaintiff started receiving calls from several milk suppliers, enquiring whether they have opened any separate Dairy, Factory in Beed, Maharashtra. On getting such enquiry, the plaintiff started making enquiries and came to know that the defendants 1 and 2 had started publishing their products ‘Tirumalaa Daairy’ and on further enquiry, they came to know that the 1st respondent company has been recently acquired by Kute Group. The 3rd and 4th defendants are the promoters of the 2nd defendant’s company. They are also Directors of the Tirumalla Oil Mills Private Limited.
5. It is averred in the Plaint that from the private investigation conducted by them, they came to know that the 1st defendant’s company likely to launch a product with the mark ‘Tirumalaa Daairy’ by the end of August 2020. The name of the 1st respondent company had been changed from ‘Swaraj India Industries Limited’ to ‘Tirumalaa Daairy Limited’ in order to confuse the consumer by using deceptively similar trademark and trade name. Further alleging that the defendants have launched their new unit with the impugned branch at Kolathur, Chennai. On 01.01.2020, the plaintiff has filed a suit at Chennai alleging that part of cause of action falls within the jurisdiction of this Court.
6. The application to reject the Plaint filed by the Director of the 1st respondent company on behalf of the defendants specifically alleges that the address of the plaintiff furnished in the Plaint is incorrect and has been shown as carrying on business in the said address to mislead the Court and bring the suit within the territorial jurisdiction of High Court, Madras.
7. It is further averred that, the plea that cause of action for the suit arose on 01.01.2020, when the defendants 1 to 4 launched their new unit with the impugned mark, which is available for access through You Tube at Chennai will not confer any jurisdiction of this Court. The defendants claim that they acquaint the 1st defendant company, which is having registered office at Maharashtra being ardent followers of lord Venkateshwara he adopted the mark Tirumalaa. They are using the said trademark with respect of edible oil and other products made out of oil since 2004. In the year 2015, they started the Private Limited Company by name called Tirmalaa Oil Refinery Private Ltd., on the basis of long standing good will and reputation developed their business. They decided to adopt similar mark ‘Tirumalaa daairy’. They are using the trademark ‘Tirumalaa’ since 2004 for their oil products and they want to extend the same for their milk products.
8. The plaintiff’s registered office is out side the territorial jurisdiction of High Court, Madras. Its registered office is located at Thiruvallur District, which does not come under the original jurisdiction of the High Court, Madras. The defendants are carrying on business at Maharashtra and neither of the parties residing nor carrying on business within the territorial jurisdiction of this Court and thereby the suit has to be rejected for want of jurisdiction. Further, it is also contended that the address provided in the Plaint as sales office of the plaintiff’s company is found to be false and fake. The private deductive appointed by the defendants has verified the place and found that there is no such office run by the plaintiff in the given address. The promotional video of the defendant’s product exhibited through You Tube will not confer any jurisdiction.
9. The main ground to reject the Plaint as found in the application is that the address given by the plaintiff is fake and no cause of action has been arisen within the jurisdiction of this Court.
10. The plaintiff has filed counter stating that in view of Section 134(2) of the Trademark Act, 1999, the location of the registered office of the applicants/defendants is immaterial. The plaintiff is having his sales office at Chennai and voluntarily carrying on business from that office and right to sue at Chennai is accrued to the plaintiff under Section 134(2) of the Trademark Act, 1999. The institution of the suit in Chennai will not cause any prejudice to the applicants/defendants. The private investigation alleged to have been carried from the applicants/defendants is irrelevant. The plaintiff after filing the suit had shifted the sales office. In the process of shifting photos have been taken to misrepresent as if the plaintiff has no sales office in the given address. In fact, the lease agreement between the landlord and the plaintiff in the said premises was in force at the time of institution of the suit and got terminated only after the office was shifted to Villivakkam. The possession of the premises was handed over to the landlord only on 01.02.2021.
11. On considering the present application to reject the Plaint for want of jurisdiction, it is to be considered whether the suit filed at Chennai satisfies Section 134(2) of the Trademark Act and or under clause 12 of the Letters Patent. The Plaint is instituted on 13.08.2020, the address of the plaintiff as shown in the cause title is No.125, 1st Floor, 7th Cross Street, Senthil Nagar, Chennai-99. It is admitted by the plaintiff that their registered office is at 400 ft. Road, Periamedu, Chennai-110, which is in Thiruvallur District and out side the territorial jurisdiction of this Court. If the plaintiff carrying on business within the territorial jurisdiction of this Court, the Section 134(2) of the Trademark Act enables him to file the suit in Chennai.
12. Section 134 (2) of the Trade Mark Act, does not mandate that the place of business necessarily be the place of registered office. Company like the plaintiff may have several places of business and the Act enables the plaintiff to file the suit at the place where they carried on business and need not file the suit at the place of defendants. However to show that the place of business mentioned in the plaint, the plaintiff ought to have placed some prima facie documents if not along with Plaint, atleast along with the counter. They should have satisfactorily placed documents to prima facie satisfy the Court that at the time of filing of the suit they were carried on the business within the territorial jurisdiction of this Court. The law requires at the time of filing the suit, they should have carried on business within the jurisdiction of this Court and not continue to carry on business within the jurisdiction of this Court.
13. The specific case of the plaintiff is that they carry on business within the jurisdiction of this Court at the time of institution of the suit. Therefore, entitled to file a suit before this Court under Section 134 (2) of the Trademark Act. No doubt Section 134 (2) of the Act provides additional place of jurisdiction for the plaintiff and the Section reads as below:
134. Suit for infringement, etc. to be instituted before District Court.
(2). For the purpose of clauses (a) and (b) 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 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.
“Clause 12 of the Letters Patent reads as under:-
12. Original jurisdiction as to suits:- And We do further ordain that the said High Court of Judicature at Madras, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description, if, in the case of suits for land or other immovable property, such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court or if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Madras, in which the debt or damage, or value of property the sued for does not excited hundred rupees.”
14. In the cause of action, the plaintiff says that the plaintiff instituted the suit at Chennai, since its sales office is within this Court jurisdiction and also the 1st defendant has uploaded his inaugural ceremony in You Tube, which is visible in Chennai. The suit for infringement of trademark and passing off, visibility of Chennai inaugural function, where there is no actual transaction of product will not confer jurisdiction. Whereas, if the plaintiff has placed any prima facie material that its sales office was at Chennai, then the suit is maintainable before this Court.
15. For the said purpose the counter affidavit filed by the plaintiff is examined and in paragraph No.7 of the counter affidavit, the plaintiff had stated as below:
“I humbly submit that the averments of the applicants/defendants in paragraph 7 is denied in its entirety. The photographs submitted by the Applicants/Defendants, along with the “investigation report”are pictures of the said sales office at the time that the process of vacating had commenced though not completed. I humbly submit that the said premises were leased out to the Respondent/Plaintiff and the Lease was still in force at the time of institution of the suit until the some was terminated for the purpose of consolidating the offices of the Respondent/Plaintiff actually hand over the possession of the property back to the landlord. I further submit that based on self-serving, ill-informed and vague reporting and photographs the Applicants/Defendants are attempting to mislead this Hon’ble Court. I humbly submit that this is clearly an abuse of process of law and such practices must be nipped in the bud. I respectfully submit that all the allegations in paragraph 7 are completely false, as at the time of initiation of the suit and even the present Appeals the sales office of the Respondent/Plaintiff was still functioning in the said address. I further submit that it is a settled position of law that it is completely immaterial that there has been a change of address subsequent to initiation of the suit. Furthermore, I submit that without prejudice to the aforementioned position of law, even currently the Sales office of the Respondent/Plaintiff is situated in Baba Nagar, Villivakkam, Chennai which in any case is within the jurisdiction of this Hon’ble Court.””
16. From the 6th para reproduced above and other paragraphs of the affidavit, it appears that the plaintiff who has filed earlier suit with the same address has been accepted by this Court and relief granted. Therefore, the plaintiff wants to impress upon this Court that their sales office at Senthil Nagar, Chennai has to be presumed as the place of business and accepted. Unless and until some material is shown to accept that the plaintiff has its sales office in the said address, the averment made in the Plaint cannot be accepted without supportive documents, when same is challenged by the defendants.
17. Likewise, the jurisdiction can be decided based on the place of business at the time of institution of the Plaint and not the subsequent place. It is the specific case of the plaintiff that there is a lease agreement between the landlord and plaintiff in respect of the premises, where they were having the sales office. The said lease deed has not been placed before this Court and there is no invoice produced to show that from the sale office
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of the plaintiff located at 125, 1st Floor, 7th Cross Street, Senthil Nagar, Chennai business was carried. 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. 19. However taking note of the fact that this Court is prima facie satisfied that there is an attempt to infringe the trademark by the defendants and had granted interim relief restraining the respondents from using the trademark Tirumalaa/Tirumalaa Daairy, which is deceptively similar to that of the registered trademark of the plaintiff, this Court extends the interim order for a period of two months to enable the plaintiff to take back the Plaint and present it before the appropriate Court. 20. For all these reasons, this Court holds that the Plaint has to be returned to represent before the appropriate Court, which has jurisdiction. The Registry is directed to return the Plaint along with other applications. Accordingly, the application to reject the plaint is disposed with direction. Time granted for representation is one month from the date of receipt of copy of this order. The interim order granted shall be in force for 60 days from today.