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
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
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
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