India: Lack Of Jurisdiction: Shaw Wallace´ Plaint Returned

Last Updated: 26 February 2009

Jurisdiction is undoubtedly the most important consideration while filling a suit. Being, a subject incorporated in the Civil Procedure Code, 1908 the issue presented itself forth the Delhi High Court in the case of Shaw Wallace v. M.P. Beer Products [2009 (39) PTC 129]. The plaint in this case was returned on the ground of lack of jurisdiction in spite of both the parties submitting to its jurisdiction, stating:

"When a Court had no jurisdiction at all in the matter, by consent the parties cannot confer jurisdiction. Only that Court would have jurisdiction which according to law has jurisdiction."

In an application made under Order 7 Rule 11 of the Civil Procedure Code, praying for the rejection of the plaint, the ground that the Court had no territorial jurisdiction vested in it to entertain the suit was raised. Dealing with a matter of trademark infringement, copyright and passing off, the mark in contention was the usage of "5000" or "PRESIDENT 5000" which was stated to be deceptively similar to the trade mark "HAYWARDS 5000 SUPER STRONG BEER" held by Shaw Wallace in respect of its goods. The prayer also included a direction to handover all goods, packaging material connected with the trade marks "5000" and/or "PRESIDENT 5000" and to recall all products bearing the trade mark and that the same be delivered to the Shaw Wallace' attorney for destruction.

The provision under contention, S. 134 of the Trade Marks Act 1999 deals with the question of jurisdiction. A perusal reveals that in order to invoke the jurisdiction for infringement of a trade mark relating to any right in a registered mark, the person instituting the suit or the proceeding should actually and voluntarily reside or personally work for gain within the jurisdiction of that Court. On the question of jurisdiction of the Court being invoked, it was averred that nowhere was it stated in the plaint that Shaw Wallace had any office/branch office in Delhi or that it was carrying on its business in Delhi through any branch office. Shaw Wallace pleaded that since their goods were being sold and offered for sale at various outlets at Delhi, the Court at Delhi had jurisdiction. In the course of arguments, Shaw Wallace cited evidence that M.P. beer Products' goods were being sold in Delhi, However, it was noted that while citing the addresses, a New Delhi address for Shaw Wallace was mentioned.

The Court noted that it was settled that while considering an application made under Order 7 Rule 11 of the CPC, for rejection of plaint, the Court must look into the averments made in the plaint alone and that they are assumed to be correct. The Court noted that it is not permissible to look into the plea raised in the written statement or to look at any other piece of evidence. Shaw Wallace had not made any averment that M.P. Beer Products was doing business within the jurisdiction of this Court and noted that the only averment made was that they were selling their goods in Delhi.

Examining the considerations to be taken into account under Section 134 and certain previously decided cases, it was opined that only if the goods of a company are sold at a place would not mean that the company carries own the business at that place. By giving an address within the jurisdiction of this Court without specifying as to what the address was about, does not entitle a company to file the suit within the jurisdiction of this Court. The Court noted that Shaw Wallace had a registered office at Calcutta and another office at Mumbai, and that M.P. Beer Products was located in Madhya Pradesh, the Court found no reason as to why the jurisdiction of the Delhi High Court had been invoked when no cause of action had arisen in Delhi. During arguments Shaw Wallace stated that M.P, beer Products had filed a caveat in the Delhi High Court and that though this caveat had exhausted before filing the suit, it showed the submission of M.P. Beer Products to the jurisdiction of this Court. The Court however opined that when no jurisdiction vested at all in the matter, the parties could not confer jurisdiction by consent. The Court clarified that if two Courts had jurisdiction as per law, then the parties have the liberty to choose either one of the two Courts by mutual consent. The Plaint was directed to be returned to Shaw Wallace for filing before the Court of appropriate jurisdiction.

© Lex Orbis 2009

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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