India: Singer’s Plaint Allowed To Be Amended: Plea For Rejection Dismissed

Last Updated: 11 June 2009

Absence of jurisdiction is one of the primary grounds vouched while contending the rejection of a plaint in a civil suit. The present case of Singer Co. Ltd. and Anr. v. M/s Chetan Machine Tools and Ors. [2009 (39) PTC652] evidences an application for rejection of plaint for lack of jurisdiction by the defendants, while the plaintiffs seek an amendment of plaint to strengthen their grounds as to the Court's jurisdiction being present, in a Trademark dispute.

Singer Co. Ltd. and Singer India Ltd., proprietors of the country's largest and most successful sewing machine company , and having presence in over 150 countries under the trademark "Singer" which is registered since 1942. They moved to Court alleging Chetan Machine Tools of using a deceptively similar trademark and prayed for a decree of permanent injunction. In contravention, Chetan Machine Tools filed an application under Order VII Rule 11 to seek rejection of the plaint on the ground that no cause of action is disclosed within the jurisdiction of the Delhi High Court. They averred that the only ground vouched for the Court to exercise its jurisdiction is that Singer India Ltd. carried on its business within the territorial jurisdiction of the Delhi High Court. The Court also took note that a number of documents were filed along with the plaint, among which a reply to a notice from Chetan Machine Tools averring them to be manufacturers and merchants of Milling Machines and machine tools since 1991 and that the same were being sold throughout the country and had attracted reputation and goodwill. Further, on this count Singer moved to file an application seeking the amendment of the plaint incorporating these facts and stating that the website of Chetan Machine Tools was accessible from within the present Court's jurisdiction.

Examining the question of jurisdiction, the Court looked at the provisions of the Civil Procedure Code whereby the territorial jurisdiction to entertain a suit is governed by Section 20 of the Code. The Court also looked at the case of Liverpool & London S.P. and I Asson. Ltd. Vs. M.V. Sea Success I and Anr.[2004(9) SCC 512] which reiterated that having regard to Order VII Rule XIV of the Code, not only the plaint but also the documents filed along with the plaint are required to be taken into consideration for the purpose of disposal of the application under Order VII Rule 11 of the Code. Thus the documents filed along with the plaint were said to form part of the same.

In this light, vide the reply to the notice it was found that Chetan Machine Tools were sold throughout India and therefore would include Delhi also. Moreover in view of Section 134(2) of the Trade Marks Act, 1999 read alongside the relevant paragraph of the plaint, established beyond doubt that the Delhi High Court has jurisdiction.

Considering the allowability of the amendment in the plaint, Chetan Machine Tools contended that the plaint was completely silent on the question of jurisdiction and that the lacuna could not be permitted to be overcome by allowing the application for amendment or by looking into the documents filed along with the plaint, for documents can only supplement the averments made in the plaint but cannot act as a substitute to the missing averments. The Supreme Court judgment in M/s Ganesh Trading Co. vs. Moji Ram (AIR 1978 SC 484) was revisited wherein it was held that the defective pleadings are generally curable if the cause of action sought to be brought out was not ab-initio completely absent. Keeping this in mind, the court held that it was a mere omission on behalf of Singer which they sought to rectify through the amendment petition and hence should be allowed.

On the question of use of dissimilar marks and consequent infringement of TM & passing off,Chetan Machine Tools in view of Section 30(2) (e) of the Trade Marks Act, 1999 argued that no suit for infringement is maintainable. The only remedy that was available was to file a cancellation petition for removal of the registered trademark before the Registrar of Trade Marks, which the plaintiff has already done. Singer on the other hand relied on S.124 (1) (b) (i) of the 1999 Act and contested this argument placed. The court examining the contentions concluded that the plaint could not be set off as such, but the question of infringement was an issue to be decided later.

The court concluded that the application of Chetan Machine Tools filed under Order VII Rule XI of the Code be dismissed, and the application of Singer under Order VI Rule XVII of the Code be allowed.

© Lex Orbis 2009

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