Case title:
IMPRESARIO ENTERTAINMENT AND HOSPITALITY PVT. LTD Vs. M/S. ORANGEBELLY FOOD AND BEVERAGES PVT. LTD. & ANR
Date of Order:
22nd of February, 2023
Bench:
HON'BLE MR. JUSTICE C. HARI SHANKAR
Parties:
Petitioner: IMPRESARIO ENTERTAINMENT AND HOSPITALITY PVT. LTD,
Through: Mr. Chander M. Lall, Sr. Adv
Respondent:
M/S. ORANGEBELLY FOOD AND BEVERAGES PVT. LTD. & ANR,
Through: Ms. Khyati Dhupar, Adv and Mr. Govind K. Chaturvedi, Adv.
SUBJECT:
Although the defendants have filed this application under Order VII Rules 10 and 11, the defendants' knowledgeable counsel, Ms. Khyati Dhupar, is only pressing the application under Order VII Rule 10. Ms. Khyati claims that this lawsuit is invalid due to a lack of territorial jurisdiction and must be returned to be presented before the proper forum.
IMPORTANT PROVISIONS:
Code of Civil Procedure, 1908:
In Order VII, Rule 10 for the existing sub-rule (1) and its marginal note substitute the following as sub-rule (1) and marginal note:
“10. Return of plaint. — (1) Subject to the provisions of Rule 10-A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. The plaintiff or his pleader shall be informed of the date fixed for the return of the plaint.”
ORDER VII, RULE 11 provides for the rejection of a plaint in the following cases:
(a) When it does not disclose a cause of action,
(b) When the relief claimed is undervalued and the plaintiff fails to correct the valuation despite being required by the court to do so within a fixed time,
(c) When the plaint is insufficiently stamped and the plaintiff fails to provide the requisite stamp-paper within a fixed time, and
(d) When the suit appears to be barred by any law.
The court may extend the time for correcting the valuation or supplying the requisite stamp paper only if it is satisfied that the plaintiff was prevented by an exceptional cause from doing so within the fixed time and refusal to extend the time would cause grave injustice to the plaintiff
OVERVIEW:
The plaintiff in the lawsuit claims that Defendant 1 violated the plaintiff's registered "SOCIAL" mark by operating a restaurant under the name "SOCIAL KULTURE." It is true that the restaurant is only in Patna and doesn't have any other locations.
Defendants 1 and 2 are both listed as being in Patna in the memo of parties that is attached to the plaint. On the other side, the plaintiff's address is given in New Delhi -110019 and also Bombay, 400008.
ISSUES RAISED:
Whether the court has jurisdiction in the abovementioned case.
ARGUMENTS ADVANCED BY THE APPELLANT:
- Without delving into the issue of whether this Court's jurisdiction might be asserted due to the defendant's website being hosted, Mr. Chander M. Lall argues that Section 134(1) and (2) of the Trade Marks Act would in any case provide this Court jurisdiction in the current case.
- According to Mr. Lall, the present case would fall under the principle described in case of Ultra House Construction (discussed below) because the plaintiff's major business is in Delhi and the cause of action has arisen in Patna, where the plaintiff has no office. Therefore, in some situations, the plaintiff is allowed to file the lawsuit in Delhi.
- Mr. Lall discusses a court case, Mayer (HK) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express [(2006) 3 SCC 100], and relies on paragraphs 31 and 32 of the report.
- Para 31: The court found that the Calcutta Court has jurisdiction to try the proceedings unless a forum selection clause excludes its jurisdiction. The defendant in the case argued that the exclusion clause conferred jurisdiction on the court where they had their principal place of business, but the court stated that this needed to be determined based on sufficient material presented.
- The definition of "principal place of business" was provided as the place where the governing power of the corporation is exercised, and not where labor is performed.
- Para 32: It was also discussed in the above case the determination of the principal place of business for a corporation and the factors that should be considered when deciding which court has jurisdiction over a legal dispute. It suggests that the governing power of the corporation or the location of its Chief Executive Offices are typically viewed as the principal place of business, but parties must provide relevant material to the court to establish this.
- It was also noted that the defendants did not provide sufficient evidence to show that a Singapore court would be a more appropriate forum for the dispute and that the Calcutta High Court is the most suitable venue for the trial. As a result, the court refused to grant a stay of the proceedings in the Calcutta High Court.
ARGUMENTS ADVANCED BY THE RESPONDENT:
- Due to the fact that Ms. Khyati's client's restaurant is only located in Patna and doesn't have any locations outside of Patna, Ms. Khyati argues that no part of the cause of action in the current case has arisen within the boundaries of this Court's territorial jurisdiction. She claims that this court does not have jurisdiction over this subject just because her client may have an interactive website.
- Ms. Dhupar, the Counsel for the Defendants, has disputed Mr. Lall's assertion that the Plaintiff's major office is in Delhi. Regarding this claim, the defendants have only argued in their written statement that Byculla (West), Mumbai-400008 is the plaintiff's registered office according to the plaintiff's data on the Ministry of Corporate Affairs website. She claims that the aforementioned Mumbai address must be taken into consideration as the plaintiff's major office.
JUDGEMENT ANALYSIS:
- In accordance with Section 134(2), the court has jurisdiction "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 other proceeding, or, where there are more than one such person, any of them, actually and voluntarily resides, carries on business, or personally works for gain."
- It was discussed how a corporation (including a company) can sue in court under section 134(2) or section 62(2) of the law, which are similar. The plaintiff can sue at the place of its sole office, or at the place of its principal office if the cause of action has arisen there.
- If the cause of action has arisen at the place of the plaintiff's subordinate office, the plaintiff can sue there but not at the place of the principal office. If the cause of action has arisen at some other place, the plaintiff can sue at the place of the principal office but not at the place of the subordinate office. These principles have been established in a court case called Ultra Home Construction Pvt. Ltd. v. Purushottam Kumar Chaubey [2016 SCC OnLine Del 376].
- It is common knowledge that the application's averments must be considered when determining an application under Order VII Rule 10 or Order VII Rule 11 of the CPC. The complaint also alleges that Delhi served as the primary location for the plaintiff's core activities, including its pan-India franchise and licensing business as well as the management of its non-food supply chain for all of its bars and restaurants. Furthermore, it is asserted that the plaintiff's major office, which also operates out of its Delhi office and conducts these negotiations, is located there.
- As a result, the court was persuaded that the current case could not be dismissed for lack of territorial jurisdiction and the application is therefore denied.
CONCLUSION:
- In conclusion, the court's jurisdiction is determined by the location of the plaintiff's residence, place of business, or where they work for gain. In the case of a corporation, they can sue under Section 134(2) or Section 62(2) of the law, with the jurisdiction depending on the location of their sole or principal office, or the location where the cause of action has arisen.
- In determining an application under Order VII Rule 10 or Order VII Rule 11 of the CPC, the application's averments must be considered. Based on the application's allegations that Delhi served as the primary location for the plaintiff's core activities and major office, the court was convinced that the case could not be dismissed for lack of territorial jurisdiction, and the application was denied
