Jurisdiction of the court limited only where part of cause of action taken place

* IN THE HIGH COURT OF DELHI AT New Delhi

% Judgment Pronounced on: August 13, 2012

+ I.A. No.3037/2011 in CS (OS) No.456/2011

TIMES OF MONEY LIMITED .... Plaintiff

Represented by: Mr.Hemant Singh, Adv. with Mr.Sachin Gupta and Mr.Shashi Ojha, Advs.

Versus

REMITHOME CORPORATION & ANOTHER ..... Respondents

Represented by: Mr.Rajiv Virmani, Sr. Adv. with Mr.Shambhu Sharan and Mr.Yaman Kumar, Advs. for D-1.

CORAM:

HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiff has filed a suit for declaration and other consequential reliefs of injunction seeking following prayers:

“(a) a decree of declaration declaring that the plaintiff has right and legitimate interest in respect of the impugned domain names “www.remit2home.com” and “www.remit2home1.com” and the domain name registrations and use of such domain names by the plaintiff are not in “bad faith”;

(b) a decree for permanent injunction restraining the defendant No.2 from transferring the impugned domain names “www.remit2home.com” and “www.remit2home1.com” from the plaintiff to the defendant No.1;

(c) a decree for damages suffered by the plaintiff on account of the complaint filed by the defendant No.1 subject matter of the present suit and the impugned decision dated 21st February, 2008 passed thereon causing irreparable damages and injury to the goodwill and reputation of the plaintiff;

(d) pass any further orders as this Hon‟ble Court may deem fit and proper under the facts and circumstances of the present case.”

2. By way of this order, I propose to decide the present application filed by the plaintiff under Order XXXIX Rules 1 and 2 read with Section 151 of CPC, 1908. Plaintiff has filed the instant suit for declaration, perpetual injunction and damages against the defendants.

3. Brief facts of the case leading up to filing of the present suit are enunciated as under:

a) The plaintiff belongs to the “Times Group” which started 7 decades ago with the business of publishing news papers, journals, magazines and books. The plaintiff has also entered the field of e-commerce and the primary business is to provide the money transfer facility to the people of different ethnic communities residing in USA to their home countries through the plaintiff‟s internet services by using the plaintiff‟s website namely www.remit2india.com for online money transfers. The remittance operations were commenced on 14th February, 2001 with one country (USA) and one currency (USD). Now includes 23 countries and 9 originating currencies.

b) Remit2india.com as a domain name was registered on 9th June, 2000 in favour of the plaintiff by Dynaserve Technologies Ltd. Canada, that is a Registrar accredited by ICANN. The plaintiff also adopted similarly structured domain names/trademarks namely remit2home.com and remithome1.com which were duly registered on 20th July, 2004 and 14th November, 2006 respectively, by ICANN accredited registrar namely Net 4 India Limited, the defendant No.2, which is a public limited company registered under the Companies Act, 1956 having its registered office in New Delhi.

c) The plaintiff has filed a number of trademark applications in India in order to protect is proprietary rights in the said marks. The list of pending and registered trademarks is as under:

Plaintiff’s Registered Trade Marks

The above trademarks have been duly renewed, valid and subsisting.

4. The details of plaintiff‟s pending applications for registration are given as under:

Plaintiff’s trade mark applications

5. It is stated that the plaintiff has invested enormous amounts in advertising and marketing of its services and in brand building its flagship brands being Remit2india.com and Remit2home.com. These brands have been widely recognized as leaders in money transfer business and other financial services by worldwide press. The service and details of the business of the plaintiff have been widely covered by press. Hence, the plaintiff’s domain names/trademarks Remit2india.com, Remit2home.com and Remit2home1.com are well-known and popular trademarks/brands/websites and consumers associate them with the plaintiff.

6. The defendant No.1, namely Remithome Corporation, is a company incorporated under the laws of USA having its registered office at 2201, Broadway, Suite 701, Oakland, CA 94612 (USA). The defendant No.1 is engaged in online remittance service under the mark REMITHOME. The trademark REMITHOME was registered in Class 36 in the name of The Kenna Group LLC, a California Limited Liability Corporation, which assigned this mark to the defendant No.1.

7. The defendant No.2, namely Net 4 India Limited is a public limited company under the Indian Companies Act, 1956 who is in the business of web services providing domain name registration is the Registrar, who has registered the domain names Remit2home.com and Remit2home1.com in favour of the plaintiff, which was impugned by defendant No.1.

8. The case of the plaintiff against the defendant No.1 is that the claims to be using the mark REMITHOME since June 2003, which is 3 years after the adoption and registration of domain name Remit2inida.com (adopted in year 2000) by the plaintiff. Hence, the domain name Remit2india.com, which contains syntactical unusual juxtapositioned words and numerals i.e., “remit” followed with “2” and “india” was coined by the plaintiff much prior (2000) to adoption of REMITHOME as trade mark by the defendant No.1 (2003). The adoption of Remit2home.com is in the nature of brand extension of “Remit2india.com” having same configuration and structure and used for same business making remittance to homeland of nationals of various countries. The adoption of name Remit2home.com by plaintiff is therefore bonafide, honest and good faith.

9. In the early proceedings, admittedly the defendant No.1 filed a domain name complaint against the plaintiff, under the UDR Policy, with National Arbitration Forum electronically on 20th December, 2007 based on the following assertions:

i. The plaintiff‟s domain names, namely Remit2home.com and Remit2home1.com are confusingly similar to the defendant No.1‟s registered trade mark REMITHOME and that the impugned domain names are variants of the defendant No.1‟s registered mark as it inserts a “2” between “remit” and “home”, or adds a “1” at the end;

ii. The plaintiff does not have any rights or legitimate interests in the impugned domain names;

iii. The plaintiff has registered and used the said domain names in bad faith.

10. In view of the said complaint filed by defendant No.1, a single member panel of National Arbitration Forum, Ms.Sandra J. Franklin was appointed as the Panel for resolving the domain name dispute. Upon service of the complaint, the plaintiff filed a detailed response to the complaint, as per paragraph 5 (a) of the UDRP Rules, setting up its defence and evidence in support of its bonafide adoption of its domain names. The plaintiff also filed a counter claim, as per Rule 1 of the UDRP Rules, for UDR Policy Reverse Domain Name Hijacking.

11. The plaintiff‟s main response was based on the following grounds:

i. The plaintiff‟s (respondent‟s) domain names Remit2home.com and Remit2home1.com are not confusingly similar to the defendant No.1‟s (Complainant‟s) trade mark REMITHOME because words such as REMIT and HOME being highly descriptive mark, no monopoly can be claimed. It was stated that the trade mark registration in favour of the complainant was not valid since there was no evidence of acquired distinctiveness produced by the complainant. Hence, question of the mark acquiring secondary significance does not arise. A domain name containing descriptive features describing the nature of business cannot be protected as trademark. Under The Trade Mark Law lesser protection is given to such descriptive trademarks. However, likelihood of confusion between two marks has to be seen as a whole and not with reference to a word by word comparison;

ii. The plaintiff has rights and legitimate interests in the impugned domain names primarily because the plaintiff‟s domain name were a natural extension and derivative of the plaintiff‟s successful brand Remit2india.com which were conceptualized and launched when the plaintiff planned to expand its operations to enable remittances to countries other than India; and

iii. The plaintiff has not registered and used its domain names in bad faith as the same is apparent from the very fact that the respondent has been using its domain names since December 2006 which were a variant of its trade mark/domain name Remit2india.com. It was stated that the plaintiff is the registered holder of number of domain names registered on the lines of impugned domain names.

12. The plaintiff also filed counter claim based on the following grounds:

The defendant No.1 was aware of the plaintiff‟s legitimate operations much earlier i.e. for definitely eight months which was not disclosed in the impugned complaint which is filed with malicious intent of tarnishing the goodwill and reputation of the plaintiff‟s legitimate business.

The defendant No.1 is wrongfully using the domain name dispute resolution mechanism in order to counter the competition that it is facing vis-à-vis its primary market Philippines from the legitimate operations of the plaintiff.

13. It is the case of the plaintiff that the Panel did not consider the “counter claim”. The Panel also rejected the plaintiff‟s contention that the Remit2home.com and Remit2home1.com domain names are comprised of generic, descriptive terms and as such cannot be found identical or confusingly similar to the defendant No.1‟s REMITHOME mark on the ground that such a determination is not necessary under paragraph 4 (a) (i) the UDR Policy. The Panel vide her decision dated 21st February, 2008 held that the plaintiff‟s domain names are confusingly similar to the defendant No.1‟s trademark REMITHOME and the same be transferred to the defendant No.1.

14. The plaintiff, thereafter challenged the Panel‟s decision by filing a Misc. Case No.35 of 2008 under Section 34 of The Arbitration and Conciliation Act, 1996 before the Court of District Judge, Gautam Budh Nagar, Noida, Uttar Pradesh on various grounds. It was alleged in the plaint that due to change its attorney who had advised that the Petition under Section 34 of The Arbitration and Conciliation Act, 1996 was not maintainable as it does not constitute an Arbitration Agreement within the meaning of Section 7 of The Arbitration and Conciliation Act, 1996 and “Administrative decision” does not constitute “an arbitration award” under Section 31 of the Arbitration and Conciliation Act, 1996. Thereafter the said objections remained pending between 2008 to 2011 and in turn the plaintiff has filed the present suit under the belief that as per Paragraph 4(k) of the UDR Policy, the decision of the panel can only be challenged by way of a suit.

15. The present suit first came up for hearing before this court on 25th February, 2011, when this court issued summons in the main suit and notice in the pending applications.

16. Pursuant to the summons, learned counsel for the Defendant appeared on 9th March, 2011 raised certain objections on the maintainability of the suit and prayed that the matter should be heard on the aspect of the maintainability first. This court by way of the order dated 9th March, 2011 directed the parties to file the written submissions and thereafter on 27th July, 2011 the matter was heard on the maintainability of the suit. Counsel appearing on behalf of defendant No.2 i.e. registering authority of domain name made the statement that they shall not transfer the domain name till the issue of maintainability of the suit is decided.

17. Mr. Rajeev Virmani, learned Senior counsel for the defendant No.1 has made the following submissions to support the argument that the suit is not maintainable on account of lack of territorial jurisdiction and barred by law of limitation:

a) He submits that this court does not have territorial jurisdiction to entertain and try the present proceeding and thus the plaint ought to be returned to the plaintiff to file it before the appropriate court. It is argued that no part of cause of action has occurred within the territorial jurisdiction of this court and thus Section 20 of the Code of Civil procedure does not get attracted. This is more so that when the defendant No. 1 is not carrying on business in Delhi and Defendant No. 2 also is carrying on business in Noida and what is situated is only the registered office in Delhi.

Mr. Virmani, learned Senior counsel thus argued that none of the clauses of Section 20 of the Code come to the rescue of the plaintiff. Further, the explanation appended to Section 20 further clarifies that when the companies has principal office at one place and branch office at another place wherein cause of action has also occurred in addition to the presence of the office, the company is said to be carrying on business at the place where such branch office is situated along side the cause of action. Mr. Virmani relied upon the judgment of the Apex Court in (1991) 4 SCC 270, Patel Roadways Ltd., Bombay Vs. Prasad Trading Company and (2004) 4 SCC 677, New Moga Transport Co. Vs. United India Insurance Co. Ltd. and Ors. wherein the Supreme Court has given such interpretation to explanation to Section 20 of the Code which has been consistently followed by this court time and again. Accordingly, the conjoint effect of the same as per Mr.Virmani would be that this court does not have the territorial jurisdiction to entertain and try the present proceedings.

b) Mr.Virmani, has furthered his argument on jurisdiction by urging that even in the policy of UDRP, Clause 4(k) states that the jurisdiction of the court shall vest at the place where the complainant has submitted to the jurisdiction of the forum in the complaint under paragraph 3(b)(xiii) of the rules of procedure. Upon reading the complaint, it is clear that the defendant No. 1 has never submitted himself to the jurisdiction of the Delhi court and rather submitted to the jurisdiction of the courts at Gautam Budh Nagar wherein the office of Defendant No. 2 is situated. This is also clear when one reads the objections preferred by the plaintiff himself wherein the jurisdiction paragraph reveals the same.

According to him there is no ambiguity in the clauses of the UDRP policy and that the defendant No.1 has submitted himself to the jurisdiction of Noida courts and not Delhi courts. Thus, this court lacks territorial jurisdiction either tested on the basis of applicability of CPC or on the basis of the agreed forum under the policy.

c) Mr.Virmani, learned Senior counsel has argued that the suit in the present form is not maintainable as the same is barred by the limitation. It is argued that the award was passed on 21st February, 2008. The objections were preferred in the year 2008 and thereafter the said objections remained pending for three years with no action by the plaintiff. It is argued that till date there is no ruling by the District judge that the objections are not maintainable. The plaintiff has unilaterally withdrawn such objections from the District judge. In these circumstances, the provisions of Section 14 of the Limitation Act would not come to the aid of the plaintiff.

Mr.Virmani relied upon the following judgments passed by Supreme Court laying down the tests or preconditions for the applicability of Section 14 of the Limitation Act:

i) (1994) Supp 1 SCC 153, Jai Prakash and Others vs. Satnarain Singh and Others where the Supreme court has held that Section 14 of the Limitation Act applies only when the earlier proceedings relate to the same matter as in the suit and not otherwise.

ii) (2008) 7 SCC 169, Consolidated Engineering Enterprises vs. Principle Secretary Irrigation Department.

As per Mr.Virmani, the conditions of applicability of Section 14 of the Limitation Act are not satisfied. The suit is accordingly barred by the limitation Act. The plaint should be rejected by exercising the powers of Order VII Rule 11 CPC.

d) Mr.Virmani, learned Senior counsel argued that the suit in the present form is also not maintainable as the order dated 21st February, 2008 passed by the administrative panel is a foreign award within the meaning of Arbitration and Conciliation Act, 1996. The policy of the UDRP loosely uses the word court proceedings or suit and that by itself is not conclusive of the fact that the said award could not be challenged as per the treatment of the foreign awards prescribed under the governing law of arbitration. Mr.Virmani argued that therefore, it could not be said that the objections could not have been preferred under the Arbitration and Conciliation Act, 1996. Once they are preferred, the plaintiff could not maintain the present suit as the said award should be dealt with as per the provisions of Arbitration and Conciliation Act. This is more so when the plaintiff while withdrawing the objection did not take any liberty from the court for preferring the other remedies prescribed under the law.

In view of the aforementioned objections, Mr.Virmani urged that the suit is liable to be dismissed or rejected on either of the said grounds.

18. Per Contra, Mr.Hemant Singh, learned counsel appearing on behalf of the plaintiff has made his submissions in reply to urge that the present suit is maintainable. The said submissions can be summarized in the following manner:

a) Mr. Singh argued that this court has the territorial jurisdiction to entertain and try the present proceedings. This has been urged by the plaintiff while placing reliance on the Clause 4 (k) of UDRP policy along with the complaint filed by the complainant.

Mr. Singh argued that the conjoint effect of the reading of the provisions of the complaint would reveal that the defendant No. 1 has submitted himself to the jurisdiction of court where the principal office of the defendant No. 2 is situated. Mr. Singh then canvassed the argument that the principal office of the defendant No. 2 is the registered office which is clear from the print out of the ministry of the corporate affairs. As per Mr.Singh, the defendant No.1 after having submitted to the jurisdiction of the court where the principal office of the defendant No.2 is situated, which is in Delhi cannot urge to the contrary and the jurisdiction vests in the Delhi court to entertain and try the present proceedings. Mr.Singh further explained that the principal office as a term would mean a place where all the higher officials including the chief executive officer of the company sits, transacts the business and takes major decisions in relation to management of the company.

Mr.Singh relied upon the judgment of the Apex Court in (1994) 4 SCC 225, Morgan Stanley Mutual Fund v. Kartick Dass to urge that the residence of the company is always the place where the registered office is situated.

b) Mr.Singh argued that the suit is not barred under the law of limitation as the plaintiff was bonafidely prosecuting the objections before the wrong forum. Therefore, the provisions of Section 14 would be clearly applicable.

c) Mr. Singh further controverted the plea of the defendant that the order dated 21st February, 2008 passed by the panel is an award within the meaning of the Arbitration and Conciliation Act. It is argued that mere reading of Clause 4 (k) of the policy would reveal that the said policy itself permits the court proceedings in the form of civil suit either prior to administrative proceedings or after the decision. Therefore, it would not be correct to read into any remedy of arbitration proceedings when such was not intent of the policy makers. Therefore, the only correct remedy available as per Mr. Singh would be filing of the civil suit which has been done by the plaintiff.

Mr. Singh relied upon the judgment of this court in the case of 2009 (39) PTC 38 (Del), Beiersdorf AG v. Ajay Sukhwani & Anr wherein this court has made some observations relating to aspect of the decision of the administrative panel coming in the way of maintaining the civil suit for passing off. Thus, as per Mr.Singh, none of the objection preferred by the defendants is sustainable and the suit should be therefore allowed to be proceed as per the law by rejecting the objections of the defendants.

19. I have gone through the plaint and perused the documents filed by the plaintiff as well as the defendants. I have also given my consideration to the submissions advanced by the learned counsel for the parties at the bar. I think it is for me to first examine the objection of jurisdiction which goes into the root of the matter and depending upon the answer as to whether this court has territorial jurisdiction to entertain and try the proceedings, if the answer of the same comes either in affirmative or negative, the need to decide the other objections shall vary accordingly. For the sake of clarity, it is stated that the present suit has been filed by the plaintiff for declaration, injunction and damages and not for infringement of registered trade mark of the plaintiff and passing off. Thus, the question of applicability of special provisions under Section 134 (2) of Trade Marks Act, 1999 does not arise.

20. The Domain name rules are governed by ICANN policy which is known as UDRP (Uniform Dispute Resolution Policy). Under the said Rules, the jurisdiction of the relevant court is agreed to between the parties. The rules and relevant clauses of such procedure for the purpose of present discussion on the aspect of jurisdiction under UDRP policy reads as under:

1. Purpose. This Uniform Domain Name Dispute Resolution Policy (the "Policy") has been adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN"), is incorporated by reference into your Registration Agreement, and sets forth the terms and conditions in connection with a dispute between you and any party other than us (the registrar) over the registration and use of an Internet domain name registered by you. Proceedings under Paragraph 4 of this Policy will be conducted according to the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules of Procedure"), which are available at www.icann.org/udrp/udrp-rules-24oct99.htm, and the selected administrative-dispute-resolution service provider's supplemental rules.

2. Your Representations. By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that

(a) the statements that you made in your Registration Agreement are complete and accurate;

(b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party;

(c) you are not registering the domain name for an unlawful purpose; and

(d) you will not knowingly use the domain name in violation of any applicable laws or regulations. It is your responsibility to determine whether your domain name registration infringes or violates someone else's rights.

4. Mandatory Administrative Proceeding.

This Paragraph sets forth the type of disputes for which you are required to submit to a mandatory administrative proceeding. These proceedings will be conducted before one of the administrative-dispute-resolution service providers listed at www.icann.org/en/dndr/udrp/approved-providers.htm (each, a "Provider").

a. Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that

(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain name; and

(iii) your domain name has been registered and is being used in bad faith.

In the administrative proceeding, the complainant must prove that each of these three elements are present.

b. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

c. How to Demonstrate Your Rights to and Legitimate Interests in the Domain Name in Responding to a Complaint. When you receive a complaint, you should refer to Paragraph 5 of the Rules of Procedure in determining how your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):

(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

d. Selection of Provider. The complainant shall select the Provider from among those approved by ICANN by submitting the complaint to that Provider. The selected Provider will administer the proceeding, except in cases of consolidation as described in Paragraph 4(f).

e. Initiation of Proceeding and Process and Appointment of Administrative Panel. The Rules of Procedure state the process for initiating and conducting a proceeding and for appointing the panel that will decide the dispute (the "Administrative Panel").

f. Consolidation. In the event of multiple disputes between you and a complainant, either you or the complainant may petition to consolidate the disputes before a single Administrative Panel. This petition shall be made to the first Administrative Panel appointed to hear a pending dispute between the parties. This Administrative Panel may consolidate before it any or all such disputes in its sole discretion, provided that the disputes being consolidated are governed by this Policy or a later version of this Policy adopted by ICANN.

g. Fees. All fees charged by a Provider in connection with any dispute before an Administrative Panel pursuant to this Policy shall be paid by the complainant, except in cases where you elect to expand the Administrative Panel from one to three panelists as provided in Paragraph 5(b)(iv) of the Rules of Procedure, in which case all fees will be split evenly by you and the complainant.

h. Our Involvement in Administrative Proceedings. We do not, and will not, participate in the administration or conduct of any proceeding before an Administrative Panel. In addition, we will not be liable as a result of any decisions rendered by the Administrative Panel.

i. Remedies. The remedies available to a complainant pursuant to any proceeding before an Administrative Panel shall be limited to requiring the cancellation of your domain name or the transfer of your domain name registration to the complainant.

j. Notification and Publication. The Provider shall notify us of any decision made by an Administrative Panel with respect to a domain name you have registered with us. All decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.

k. Availability of Court Proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that your domain name registration should be canceled or transferred, we will wait ten (10) business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel's decision before implementing that decision. We will then implement the decision unless we have received from you during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that you have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure.

(In general, that jurisdiction is either the location of our principal office or of your address as shown in our Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of Procedure for details.) If we receive such documentation within the ten (10) business day period, we will not implement the Administrative Panel's decision, and we will take no further action, until we receive

(i) evidence satisfactory to us of a resolution between the parties;

(ii) evidence satisfactory to us that your lawsuit has been dismissed or withdrawn; or

(iii) a copy of an order from such court dismissing your lawsuit or ordering that you do not have the right to continue to use your domain name.

21. Likewise, there rules of procedure enacted for the purposes of working of the policy wherein again there is a hint for the purposes of invocation of the jurisdiction of the civil court. The relevant Rules of Procedure for the purposes of present discussion are reproduced hereinafter:

Paragraph 1 Definitions Mutual Jurisdiction means a court jurisdiction at the location of either (a) the principal office of the Registrar (provided the domain-name holder has submitted in its Registration Agreement to that jurisdiction for court adjudication of disputes concerning or arising from the use of the domain name) or (b) the domain-name holder's address as shown for the registration of the domain name in Registrar's Whois database at the time the complaint is submitted to the Provider

3. The Complaint (a) Any person or entity may initiate an administrative proceeding by submitting a complaint in accordance with the Policy and these Rules to any Provider approved by ICANN. (Due to capacity constraints or for other reasons, a Provider's ability to accept complaints may be suspended at times. In that event, the Provider shall refuse the submission. The person or entity may submit the complaint to another Provider.) (b) The complaint including any annexes shall be submitted in electronic form and shall:

(i) Request that the complaint be submitted for decision in accordance with the Policy and these Rules;

(ii) Provide the name, postal and e-mail addresses, and the telephone and telefax numbers of the Complainant and of any representative authorized to act for the Complainant in the administrative proceeding;

(iii) Specify a preferred method for communications directed to the Complainant in the administrative proceeding (including person to be contacted, medium, and address information) for each of (A) electronic-only material and (B) material including hard copy (where applicable);

(iv) Designate whether Complainant elects to have the dispute decided by a single-member or a three-member Panel and, in the event Complainant elects a three-member Panel, provide the names and contact details of three candidates to serve as one of the Panelists (these candidates may be drawn from any ICANN-approved Provider's list of panelists);

(v) Provide the name of the Respondent (domain-name holder) and all information (including any postal and e-mail addresses and telephone and telefax numbers) known to Complainant regarding how to contact Respondent or any representative of Respondent, including contact information based on pre-complaint dealings, in sufficient detail to allow the Provider to send the complaint as described in Paragraph 2(a);

(vi) Specify the domain name(s) that is/are the subject of the complaint;

(vii) Identify the Registrar(s) with whom the domain name(s) is/are registered at the time the complaint is filed;

(viii) Specify the trademark(s) or service mark(s) on which the complaint is based and, for each mark, describe the goods or services, if any, with which the mark is used (Complainant may also separately describe other goods and services with which it intends, at the time the complaint is submitted, to use the mark in the future.);

(ix) Describe, in accordance with the Policy, the grounds on which the complaint is made including, in particular,

(1) the manner in which the domain name(s) is/are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2) why the Respondent (domain-name holder) should be considered as having no rights or legitimate interests in respect of the domain name(s) that is/are the subject of the complaint; and

(3) why the domain name(s) should be considered as having been registered and being used in bad faith (The description should, for elements (2) and (3), discuss any aspects of Paragraphs 4(b) and 4(c) of the Policy that are applicable. The description shall comply with any word or page limit set forth in the Provider's Supplemental Rules.);

(x) Specify, in accordance with the Policy, the remedies sought;

(xi) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to any of the domain name(s) that are the subject of the complaint;

(xii) State that a copy of the complaint, including any annexes, together with the cover sheet as prescribed by the Provider's Supplemental Rules, has been sent or transmitted to the Respondent (domain-name holder), in accordance with Paragraph 2(b);

(xiii) State that Complainant will submit, with respect to any challenges to a decision in the administrative proceeding canceling or transferring the domain name, to the jurisdiction of the courts in at least one specified Mutual Jurisdiction;”

22. On the conjoint reading of the aforementioned clauses, it is clear that the said rules provide for the agreed mechanism for resolution of the domain name disputes in the form of mandatory administrative proceedings. The reference of “we” and “our” in the agreement relates to the domain registrar and “you” refers to the domain holder and “complainant” refers to the person preferring the complaint. Further, it is also seen from the careful reading of the Rule 4(k) that the mandatory proceedings shall not prevent the domain holder to approach the court by preferring the lawsuit either prior to or post the decision on the administrative proceedings.

23. It is noteworthy to mention that the said Clause 4 (k) provides for the jurisdiction at the place where the complainant has submitted to under Clause 3 (b) (xiii) of rules of procedure. The explanatory note appended to the said clause further sub categorizes the jurisdiction into two distinct eventualities either of which the complainant may agree to submit within the complaint. The said eventualities are:

a) At the place where the principal office of the domain registrar is located.

b) At the place at which the your or domain holder‟s address is shown in whois data base.

24. All this clear from the wordings “You have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure. (In general, that jurisdiction is either the location of our principal office or of your address as shown in our Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of Procedure for details.)”

25. When the said para 4 (k) under the policy is read with para 3 (b) (xiii) of the procedure rules, it is further clear that the complainant is mandated under the rules to submit to the jurisdiction of either of the place prescribed under Rule 4(k).

26. There is para 1 of the rules of procedure which defines what is mutual jurisdiction under the procedure rules differently wherein it is stated that the said jurisdiction is the principal office of the registrar (provided the domain name holder has submitted to as per the registration agreement with the registrar) or at the place which is shown as address of the domain name holder in the whois database.

27. Clearly and plainly, the said jurisdiction clause in para 1 of the rules, on the mere reading will be applicable in cases where there is a lis between the domain name holder and registrar and not in cases where there is a participation of the complainant. This is due to the reason that in cases of complaint, the jurisdiction is defined differently in the policy under Clause (4) (k) of the policy which if read with Rule 3 (b) (xiiii) of the procedure rules would leave no room for further ambiguity which is that the jurisdiction in such cases would be at the place which the complainant would submit to in the complaint (which may be either the principal office of the registrar where it is located or at the place where the domain name holder‟s address is shown to be in the whois database). Therefore, the jurisdiction under the policy is examined on the basis as to at what place the complainant has submitted to under the complaint, which shall also be the place for filing the court proceedings or law suit under the Clause 4 (k) of the policy.

28. The said ground of attracting jurisdiction of the forum court is based on the agreed forum principle just like in the ordinary cases of contract where there is an agreed forum which shall decide the dispute between the parties. This is clear from the wordings used in the policy. At the highest, one can say the said grounds for attracting the jurisdiction will operate in addition to what has been provided under the Code of Civil procedure in relation to place to sue or territorial jurisdiction of the civil court. Thus, Clause 4 (k) can be said to be additional ground for attracting the jurisdiction of the court.

29. In the present case, the complainant has invoked the first eventuality under Clause 4 (k) which is that the complainant in the complaint has submitted to the jurisdiction at the place of the registrar and thus the second eventuality as per the policy has no role to play. Even in any case, the who is database address of the plaintiff reveals Mumbai address and therefore the same is irrelevant for the purposes of present discussion.

30. If one examines the jurisdiction of the court on the basis of first eventuality under the Clause 4 (k) of the UDRP, it is clear that the complainant has submitted to jurisdiction of the principal place of the registrar located at Uttar Pradesh. This is clear from the reading of Clause 19.1 of the complaint which reads as under:

“The Complainant will submit, with respect to any challenges to a decision in the administrative proceeding cancelling or transferring the domain name, to the jurisdiction of the courts in the location of the principle office of the concerned registrar, Net4 India Ltd, Uttar Pradesh 201301, India.” It is clear that in the said clause 19.1 in the complaint, the complainant has submitted to the jurisdiction of the court in the location of principle office of the concerned registrar and thereafter the location of the said registrar is mentioned as Uttar Pradesh, India. This gives an indicator to the effect that agreed forum is situated at Uttar Pradesh. The residual doubt which remains as to whether such agreed forum is at Noida court is itself clear from the plaintiff‟s invocation of jurisdiction of Noida court while preferring the objections in the said court.

In the said objection petition, the relevant para 24 relating to jurisdiction on the basis of which the jurisdiction is invoked reads as under:

“That the respondent in its complaint has, in accordance with rule 3 (b) (xiii) of Uniform Domain Name Dispute Resolution Policy Rules, agreed to submit the jurisdiction of court at the place of business of the Registrar, which is Net 4 India Pvt Ltd, having its principal place of business at D-25, Sector 3 Noida. Accordingly, this Hon‟ble Court has jurisdiction to adjudicate the matter”

31. On a conjoint reading of clause relating to jurisdiction in the complaint and also in objection petition filed before the District Judge, Noida challenging the Award dated 21st February, 2008, it is clear that the complainant has agreed in the complaint to the jurisdiction of the court where principal office of the defendant is situated which is at UP and likewise the plaintiff has also agreed that the Noida Court would have the jurisdiction and thus there was a consensus ad idem between the parties that Noida Court would have the jurisdiction, it is clear from the fact that plaintiff had first approached the Noida Court for the purposes of challenging the Award before coming to this Court by invoking the jurisdiction on the basis of same paragraph of the complaint where the complaint has submitted himself to the UP courts and the plaintiff itself stated before that court that the complainant/defendant No. 1 has agreed to submit before the Noida court.

32. At this stage, it is stated that the wordings „principal office of the company‟ would mean the registered office of the company and it is also stated that the principal office would be the place where the Chief Executive Officer of the Company sits and takes necessary decisions and transacts the business. Therefore, once the principal office of the company is in Delhi, Delhi Courts would have jurisdiction to entertain and try the suit.

33. The said submission of the plaintiff is meritless due to the following reasons:-

a) that the jurisdiction once seen in the light of Clause 4(k) of the Policy read with the paragraph of the Complaint, there is clear indication that the complainant has submitted to the jurisdiction at the place of location of principal office of the Registrar in UP. It is also clear that the plaintiff itself approached the Noida Court and therefore the parties were ad idem that the Noida Court would have jurisdiction. It is already indicated that jurisdiction in such cases where there is an agreed forum the same is to be tested on the principle of contracts as the intention of the parties has to be seen as to what has been represented and what has been agreed to between the parties.

It is not feasible to impose any intention by finding out the meanings or reading into something which is not present in the clauses of the agreement and therefore once it is stated that the jurisdiction will vest in the court where the Principal Office of the Registrar is situated and thereafter the name and at the place of situation of the registrar is mentioned as Uttar Pradesh, then for all practical reasons it is agreed to between the parties that Noida Court where principal office is situated would have jurisdiction and it is not proper to urge that principal office is situated somewhere else and therefore that court would also entertain the suit. It is also clear from the documents filed by the defendants where under the defendant no. 2 has always represented before the domain registrar and internationally that its principal office is in Noida.

The defendant has filed the documents wherein the resolutions are passed in Noida and annual reports are prepared in Noida. Thus, it cannot be ruled out that the principal office of the defendant No. 2 may be situated in Noida as against the registered office. In any case, once it is represented by the defendant to be in Noida and thereafter agreed to in Noida by the plaintiff by filing objections against the award, it cannot be said the other way around by the plaintiff. It is well established principle of law that the jurisdiction in the cases where there are contracts are to be examined on the basis of applicability of maxim expression unius est exclusion alterius which means that expression of one is exclusion of other. The said maxim has been time again applied by the court in the cases where there are express mention of particulars in the agreement. In the case of 151 (2008) DLT 180, Moser Baer India Ltd. Vs Koninklijke Philips Electronics NV & Ors wherein the learned single judge of this court has held that in the cases where the words “alone” “only” or “exclusive” which are not mentioned in the clauses relating to agreement even then the jurisdiction can be discerned on the basis of applicability of maxim expression unius est exclusion alterius. In the words of the learned Single Judge, it was observed:-

“Even without such words in appropriate cases the maxim "expression unius est exclusion alterius" - expression of one is the exclusion of another - may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed.”

Thereafter, learned Single Judge approved the observation of Hon‟ble Supreme Court in the case of 1989 AIR 1239 Supreme Court, A.B.C. Laminart Pvt. Ltd. & Anr. vs. A.P. Agencies by observing as under:-

“In fact, the Supreme Court noted that even without such words, in appropriate cases, the maxim "expression unius est exclusion alterius" - expression of one is the exclusion of another - may be applied. The jurisdiction clause in the present case clearly stipulates that the disputes between the parties in connection with the DPLAs 'shall' be submitted to the competent courts of the Hague, the Netherlands. This is coupled with the proviso that in case the defendant No. 1 (Philips) is the plaintiff, it may at its sole discretion submit such a dispute either to the competent courts in the venue of the plaintiff's registered office or to any of the competent courts in the Territory as defined under the agreements.”

Therefore the said maxim has been applied by learned Single Judge as well as by Hon‟ble Supreme Court in ABC Laminart (Supra). Thus once it is clearly and explicitly stated in the complaint that complainant would submit to the jurisdiction at the place where Principal Office of Registrar alongside the address at Uttar Pradesh, then Noida Court where principal office of the Defendant is situated would have jurisdiction by applicability of the said maxim. It can be inferred that all other cases relating to jurisdiction are implicitly excluded as the intention of the parties was clear at the submission to the jurisdiction.

Therefore, it would be improper to find out the meaning of principal office and to impose or super impose any such intention upon the other party when the terms of the contract/clause in the policy themselves are clear and thus by virtue of applicability of the said maxim, it cannot be said that Delhi Court would have jurisdiction.

b) Secondly, the plaintiff himself had approached the Noida Court while preferring the objections challenging the award dated 21st February, 2008 passed by National Arbitration Forum and in the said objection petition invoked the jurisdiction on the basis of what has been agreed to by the complainant in the complaint. Once the plaintiff himself had approached the Noida Court on the basis of the same premise that the Noida Court would have jurisdiction due to the reason that the complainant has submitted to such court, then said very plaintiff is not allowed to approbate and reprobate at the same time.

It is now well settled that the party may not be allowed to approbate and reprobate at the same time so as to suit its convenience to take one position when the order is passed to its benefit and to take altogether different position when the said order is passed to its detriment. The said solemn doctrine is applicable either in the same forum or even can be extended to the different forums if they are related to the same matter.

Therefore, once the plaintiff himself has approached the Noida Court invoking the jurisdiction of

Noida Court and thereafter withdrawn the said objection without any adjudication by the Noida Court that it does not have jurisdiction, plaintiff is estopped from urging to the contrary before this court. It is one thing to say that consent cannot confer jurisdiction which the court otherwise does not have. However, it is altogether different thing to say that a party cannot be permitted to retract from the agreed forum which would otherwise have jurisdiction as agreed in the covenant.

The present case is falling within the purview the second part of the proposition wherein the plaintiff is estopped from retracting from the agreed forum which is Noida Court that would otherwise have jurisdiction under the Code of Civil Procedure also and which is also agreed within the policy as per the applicability of Clause 4(k) and the plaintiff cannot be permitted to retract from the said agreed forum by pleading to the contrary in order to suit his convenience and therefore the principle of approbate and reprobate shall be applicable to that limited extent.

c) The submission that principal office would be the place where Chief Executive Officer of the Company would sit and take decision. Even if that meaning is accepted, it is highly doubtful how Noida office cannot be called as principal office of the company. The documents in the present case would suggest that resolutions are passed from Noida Office, notice for meetings were invited from Noida Office and Annual Reports are also prepared from Noida Office, thus it is prima facie clear that there are such documents suggesting the principal business which transacted from Noida Office, it is highly doubtful as to how such definition unless it is specifically defined that principal office is equivalent to registered office would aid the case of the plaintiff. Thus, the principal office can be the Noida Office and in that event of the matter the said submission is merit less.

34. From the above discussion, it is clear that Noida Court has the jurisdiction as the same is expressly agreed forum by the complainant as per Clause 4(k) read with complaint filed by the complainant. This has been discerned and examined on the basis of clauses of the policy.

35. Even if as per civil procedure, the jurisdiction of the court is tested, still Delhi Courts would not have the jurisdiction to entertain and try the suit. In this respect, Section 20 Code of Civil Procedure, 1908 is reproduced below:-

Section 20. Other suits to be instituted where defendants reside or cause of action arises -Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-

“(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises.”

36. From the reading of the aforesaid section, it is clear that Section 20 prescribes mode by which the other suits can be instituted which are not falling within Sections 15 to 19 of the CPC.

The said Section 20 prescribes following eventualities for the court to assume jurisdiction:-

a) the suit can be instituted in a court within local limits of whose jurisdiction the defendants or each of the defendant more than one at a time of institution of the suit actually and voluntarily resides, or carries on business, or personally works for gain; or

b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, as aforesaid, acquiesce in such institution; or

c) the cause of action, wholly or in part, arises. There is a explanation appended to the said section as under:-

“[Explanation].-A corporation shall be deemed to carry on business at its sole or principal office in [India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.”

37. There is an explanation appended to Section 20 which provides for the carrying on of the business of the corporation in the form of fiction of law. The said explanation clearly provides two further events relating to carrying on business of the corporation. The said explanation provides that corporation shall be deemed to be carrying on business at the principal place or the sole office in India or in such a case where cause of action arises at the place where subordinate office is situated.

It is noteworthy to mention that the said explanation appended to Section 20 has come up for interpretation time and again before the courts so as to adjudge as to whether the corporation can be given a complete clean sweep by virtue of deeming fiction of law to be said to be carrying on business at the place where the principal office is situated irrespective of the fact whether there is cause of action arisen in that state or not.

38. It is not as if that in all the cases a corporation shall be deemed to be carrying on business at the principal office even if there is a subordinate office situated at the different territory proximate to the cause of action and in those cases, the second condition envisaged in the explanation shall be attracted which is for the purposes of carrying on business, subordinate office shall be said to be carrying on business and in those cases, the jurisdiction of the court will vest in that office and not at the place where the principal office is situated. This view has been endorsed by the Supreme Court in the case of Patel Roadways Limited (supra) wherein the Supreme court has held as under:-

“9. Clauses(a) and (b) of Section 20 inter alia refer to a court within the local limits of whose jurisdiction the defendant inter alia "carries on business". Clause (c) on the other hand refers to a court within the local limits of whose jurisdiction the cause of action wholly or in part arises. It has not been urged before us on behalf of the appellant that the cause of action wholly or in part arose in Bombay. Consequently clause (c) is not attracted to the facts of these cases. What has been urged with the aid of the Explanation to Section 20 of the Code is that since the appellant has its principal office in Bombay it shall be deemed to carry on business at Bombay and consequently the courts at Bombay will also have jurisdiction. On a plain reading of the Explanation to Section 20 of the Code we find an apparent fallacy in the aforesaid argument. The Explanation is in two parts, one before the word "or" occurring between the words "office in India" and the words "in respect of" and the other thereafter.

The Explanation applies to a defendant which is a corporation which term, as seen above, would include even a company such as the appellant in the instant case. The first part of the Explanation applies only to such a corporation which has its sole or principal office at a particular place. In that event the courts within whose jurisdiction the sole or principal office of the defendant is situate will also have jurisdiction inasmuch as even if the defendant may not be actually carrying on business at that place, it will "be deemed to carry on business" at that place because of the fiction created by the Explanation. The latter part of the Explanation takes care of a case where the defendant does not have a sole office but has a principal office at one place and has also a subordinate office at another place.

The words "at such place" occurring at the end of the Explanation and the word "or" referred to above which is disjunctive clearly suggest that if the ease falls within the latter part of the Explanation it is not the Court within whose jurisdiction the principal office of the defendant is situate but the court within whose jurisdiction it has a subordinate office which alone shall have jurisdiction "in respect of any cause of action arising at any place where it has also a subordinate office".

10. Here we may point out that the view which we take finds support from a circumstance which, in our opinion, is relevant. Section 20 of the Code before its amendment by the Code of Civil Procedure (Amendment) Act, 2976 had two Explanations being Explanations I and II. By the Amendment Act Explanation I was omitted and Explanation II was renumbered as the present Explanation. Explanation I so omitted read as hereunder:-

"Explanation I: Where a person has a permanent dwelling at one place and also temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence." 11. This Explanation dealt with the case of place of residence of the defendant and provided with regard to a person having a permanent dwelling at one place and also temporary at another place that such person shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. The language used in Explanation II on the other hand which is the present Explanation was entirely different. Had the intention been that if a corporation had its principal office at one place and a subordinate office at another place and the cause of action arose at the place where it had its subordinate office it shall be deemed to be carrying on business at both places the language used in Explanation II would have been identical to that of Explanation I which was dealing with a case of a person having a permanent dwelling at one place and also temporary residence at another place. The marked difference in the language of the two Explanations clearly supports the view which we have taken with regard to the interpretation of the present Explanation to Section 20 of the Code which was Explanation II earlier as indicated above.

12. We would also like to add that the interpretation sought to be placed by the appellant on the provision in question renders the explanation totally redundant. If the intention of the legislature was, as is said on their behalf, that a suit against a corporation could be instituted either at the place of its sole or principal office (whether or not the corporation carries on business at that place) or at any other place where the cause of action arises, the provisions of clauses (a), (b) and

(c) together with the first .part of the explanation would have completely achieved the purpose. Indeed the effect would have been wider.

The suit could have been instituted at the place of the principal office because of the situation of such office (whether or not any actual business was carried on there). Alternatively, a suit could have been instituted at the place where the cause of action arose under clause (c) (irrespective of whether the corporation had a subordinate office in such place or not). This was, therefore, not the purpose of the explanation. The explanation is really an explanation to clause (a). It is in the nature of a clarification on the scope of clause (a) viz. as to where the corporation can be said to carry on business. Thus, it is clarified, will be the place where the principal office is situated (whether or not any business actually is carried on there) or the place where a business is carried on giving rise to a cause of action (even though the principal office of the corporation is not located there) so long as there is a subordinate office of the corporation situated at such place.

The linking together of the place where the cause of action arises with the place where a subordinate office is located clearly shows that the intention of the legislature was that, in the case of a corporation, for the purposes of clause (a), the location of the subordinate office, within the local limits of which a cause of action arises, is to be the relevant place for the filing of a suit and not the principal place of business. If the intention was that the location of the sole or principal office as well as the location of the subordinate office (within the limits of which a cause of action arises) are to be deemed to be places where the corporation is deemed to be carrying on business, the disjunctive "or" will not be there. Instead, the second part of the explanation would have read "and in respect of any cause of action arising at any place where it has a subordinate office, also at such place".

39. This is exactly the view as propounded above which has found favour of Hon‟ble Supreme Court. The Apex court again had an occasion to deal with the same very view again in New Moga Transport Co.(supra) wherein the Hon‟ble Supreme Court has again approved the same view of Patel Roadways (supra).

40. On the basis of aforementioned discussion and observations of Supreme Court, it can be easily discerned that the explanation appended to Section 20 of CPC cannot be said to be giving a wide leeway to the corporation or to the plaintiff to sue or being sued solely at the places where registered office is situated. It does not invariably hold good in cases where the cause of action has arisen at different place and coupled with the subordinate office of the company, then in those cases the plaintiff has to approach that Forum only and cannot invoke the limited deeming fiction of carrying on business at the principal office.

41. Applying the said principle to the present case, it can be seen that Delhi Court still does not have jurisdiction to entertain and try the present proceedings. This is due to the reason that no part of cause of action has occurred in the Delhi Court. The part of cause of action occurred in Noida from where the complaint has been prosecuted and dealt with by the defendant. The defendant No. 2 has the principal office at Noida or office carrying on business at Noida. The Defendant No. 1 is foreign entity and has not consented to or acquiesced to the jurisdiction of Delhi court. Thus, the Delhi court would not have jurisdiction to entertain and try the present proceedings, as the parties have already agreed to agreed forum which is at the place of situation of principle office at Noida.

42. Consequently, considering the case from any standpoint either from the agreed forum principle under the policy or under the Code of Civil Procedure, 1908, Delhi Court would not have the territorial jurisdiction to entertain and try the present proceedings and thus the objection raised by the defendant No.1 is upheld and the plaint is liable to be returned to be presented before the appropriate forum. The Registry shall follow the procedure of Order VII, Rule 10 CPC while returning the plaint and documents.

43. In the light of the court not having jurisdiction to entertain and try the present proceedings, this court does not have jurisdiction to determine the other objections raised by the defendants. Therefore, the same shall be decided by the court having jurisdiction to entertain such proceedings along with pending interim application. The same shall be considered as per their own merit. Since the statement made by the defendant No.2 not to transfer the domain name is continuing for the last more than one year, it shall continue further for a period of four weeks till the time the plaint is filed by the plaintiff before the appropriate jurisdiction. Therefore, the concerned court is at liberty to consider the request of the plaintiff, if any, made for continuation of said statement as per its own merit.

MANMOHAN SINGH, J