| |
IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO(OS)356/2008 and CM No.11752/2008
# PFIZER ENTERPRISES SARL .?Appellant through
! Mr. Saikrishan Rajgopal with Mr. Sidharth Chopra and
Mr. Saurabh Srivastava, Advs.
-versus-
$ CIPLA LTD. ?Respondent through
Mr. Ajay Sahni with
Ms. Vrinda Bajaj, Advs.
WITH
FAO(OS)428/2008 and CM No.14785/2008
P.M. DIESELS LTD. .?Appellant through
Mr. Valmiki Mehta, Sr. Adv. with Mr. R.K. Aggarwal,
Mr. Natwar Rai and Mr. Amit Gaurav Singh, Advs.
-versus-
PATEL FIELD MARSHAL INDUSTRIES?Respondent
through
Mr. Shailen Bhatia with
Ms. Ekta Nayal Saini, Advs.
24.10.2008
Date of Decision : October 24, 2008
CORAM:
HON?BLE MR. JUSTICE VIKRAMAJIT SEN
HON?BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may
be allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be
reported in the Digest? Yes
VIKRAMAJIT SEN, J.
J U D G M E N T
1. In the Pfizer Appeal the Plaintiffs have assailed the Order dated
16.7.2008 of the learned Single Judge holding that the High Court of Delhi lacks
territorial jurisdiction. The impugned Order returns the Plaint for filing in
the appropriate court. The dispute centres upon the averments made in the Plaint
and the response thereto contained in the Written Statement.
2. P.M. Diesels litigation has remarkable annals. For the present purposes
the relevant pleadings are found in paragraph 30 of the Plaint wherein it has,
inter alia, been asserted that ?the goods of the parties bearing the impugned
trade marks are also sold in the Union Territory of Delhi?. The interim
injunction had been declined on 10.3.1998 principally for the reason that the
Plaintiff/Appellant had failed to establish the territorial jurisdiction of the
courts in Delhi. In the Appeal the Division Bench set aside the Order and the
lis was carried further to the Supreme Court. Their Lordships noted that one of
the three contentions raised was that the Defendants were selling the offending
goods in Delhi, and that the Delhi High Court did not advert to it. Indeed, the
Supreme Court remanded the matter to the Delhi High Court for it to answer this
aspect of the dispute opining that questions of fact ?required to be properly
determined in case evidence is led by the parties?. Eventually, the Defendant
filed the application under Order VII Rule 11 of the Code of Civil Procedure,
1908 (CPC for short) for dismissal of the Suit which was allowed but after
treating it under Order VII Rule 10 (return of the Plaint). It is this Order
dated 20.8.2008 which has been assailed before us.
3. The respective pleadings in the Pfizer Enterprises action relevant for
the present purposes are produced in juxtaposition:-
Plaint
Written Statement
17. This Hon?ble Court has necessary jurisdiction to entertain and try the
present Suit, by virtue of Section 134(1) of the Trade Marks Act, 1999 as the
Plaintiffs? products including DALACIN C, are available for sale and
distribution within the jurisdiction of this Hon?ble Court. Further, the
Defendants? products under the impugned mark are available for sale in Delhi and
therefore, the cause of action has also arisen within the jurisdiction of this
Hon?ble Court.
17. That the contents of para 17 of the plaint are wrong and emphatically denied
and the plaintiffs are put to strict proof of their said averments. It is
submitted that this Hon?ble Court has no territorial jurisdiction to entertain
and try the present suit in as much as none of the plaintiffs are the
?registered proprietor? of the aforementioned trade marks in terms of Section
2(1)(v) of the Trade Marks Act, 1999 and the present suit for an alleged
infringement is liable to be dismissed on this account alone. Even an alleged
action of passing off is not maintainable in as much as the trade marks, get-up,
placement, design, prices, packaging, etc. of the two competing products is
completely different and one can by no stretch of imagination be confused/passed
off as the other particularly in view of the fact that both the medicines are
scheduled drugs and there is neither any possibility nor even any remote
probability of one being mistaken for the other. From the array of parties as
disclosed in the plaint it is clear that the both the plaintiff and the
defendant carry on their business in Mumbai and therefore this Hon?ble Court
would have no territorial jurisdiction to entertain and try the present suit.
Reply to the preceding paragraph may be read as a reply to this paragraph also.
4. It would be of advantage to recall Order VI Rule 2 of the CPC which
mandates that the evidence by which the material facts are to be proved ought
not to be pleaded. Rule 4 prescribes that in all cases in which the party
pleading relies on any misrepresentation, fraud, breach of trust, wilful
default, or undue influence, and in all other cases in which particulars may be
necessary beyond such as are exemplified in the forms contained in Appendix-I,
particulars shall be stated in the pleading. Order VII Rule 1 of the CPC spells
out the particulars that should be contained in the Plaint and inter alia
requires that facts showing that the Court has jurisdiction must be contained
therein. Rule 10 contemplates the return of the Plaint at any stage of the suit
if the Court is of the opinion that it should be presented in some other Court.
5. Order VIII of the CPC places substantially similar obligations on the
Defendant. Rule 2 thereof specifically states that the Defendant must raise by
his pleadings all matters which show the suit not to be maintainable. It further
requires to be pleaded all grounds of defence as, if not raised, would be likely
to take the plaintiff by surprise, or would raise issues of fact not arising out
of the Plaint. Rule 3 clarifies that it would not be sufficient for a Defendant
in his Written Statement to deny generally the grounds alleged by the Plaintiff;
the Defendant must deal specifically with each allegation of fact and of which
he does not admit the truth. Rule 4 prescribes that where a Defendant denies an
allegation of fact in the Plaint, he must not do so evasively, but must answer
the point of substance. An illustration is contained in the Rule itself which is
poignant to the point before us. It is that if it is alleged by the Plaintiff
that the Defendant had received a certain sum of money, it shall not be
sufficient for the Defendant to deny that he received that particular amount,
but the Defendant must deny that he received that sum or any part thereof, or
else set out how much he received. The Defendant must categorically refute the
averments in the Plaint on the strength of which territorial jurisdiction is
claimed. Rule 5 further goes on to state that every allegation of fact in the
Plaint, if not denied specifically or by necessary implication, or stated to be
not admitted in the pleading of the Defendant, shall be taken to be admitted.
Indeed, the CPC takes pains to stipulate that the assertions in the Plaint must
be categorical and unambiguously answered. If the Defendant fails to effectively
respond to the pleadings in the Plaint and instead sets out extraneous reasons
why the Court does not possess jurisdiction, the non traversed pleadings will be
deemed to be correct.
6. By an amendment introduced with effect from 1.7.2002 Rule 14 of Order
VII requires, where a plaintiff sues upon a document or relies upon document in
his possession or power in support of his claim, that he shall enter such
documents in a list, and shall produce it in Court when the Plaint is presented
by him and shall, at the same time deliver the document and copies thereof, to
be filed with the Plaint. Order XXXIX of the CPC makes the existence of
documents critical at the pre-trial stages of the suit, inasmuch as it mandates
service of documents on which the Plaintiff relies on the opposite party. That,
however, will be relevant to the aspect of whether the applicant has succeeded
in making out a case for the issuance of an injunction, ex parte or after
hearing the adversaries.
7. Returning to the pleadings in the case in hand, it is worthwhile to
underscore that the Plaint states that ?DALACIN C? is ?available for sale and
distribution within the jurisdiction of this Court. Further, the Defendant?s
products under the impugned mark are available for sale in Delhi?. In response
to these categorical pleadings, no doubt the Defendant has commenced his
response by generally stating that contents of the corresponding paragraph of
the Plaint are wrong and emphatically denied, and that this Court has no
territorial jurisdiction to entertain and to try the Suit. However, this
objection has been predicated on three grounds ? firstly that none of the
Plaintiffs are the registered proprietors of the trade mark; secondly that the
claim of passing off is not maintainable since the trademark, getup, placement
etc. are completely different and both the medicines are scheduled drugs and
there is no possibility of a customer being mistaken; lastly and most
importantly that both the Plaintiffs and the Defendant carry on business in
Mumbai and, therefore, Courts in Delhi have no territorial jurisdiction. There
is not even a whisper with regard to the Plaintiff?s assertion that ?DALACIN C?
is available for sale and distribution in Delhi and that the Defendant?s
offending products are also available for sale in Delhi. As has been graphically
stated by the Apex Court, the cause of action constitutes a bundle of facts any
of which, and not collectively all of which, may constitute the cause of action
necessary for filing of a lis in a particular Court.
8. In Trade Connection ?vs- International Building Products(P) Ltd., 2002
III AD (Delhi) 344, a learned Single Judge of this Court had transformed a
failure to reply to paragraphs in the Plaint into unequivocal admissions of
fact. In H.S.E.B. ?vs- Ram Nath, (2004) 5 SCC 793 their Lordships noted that
there was no denial to the categoric averments to the effect that electrical
wires were loose and were drooping and touching the roof of houses and,
therefore, a deemed admission must be drawn against the Defendant. In Ram Singh
?vs- Col. Ram Singh, 1985 (Supp.) SCC 611 the Supreme Court again applied Order
VIII Rule 5 of the CPC in concluding that the Respondent must be deemed to have
admitted that two persons named in the Petition were the relatives of the
Respondent because of his failure to specifically deny this assertion. Badat and
Co. ?vs- East India Trading Co., AIR 1964 SC 538 is extremely important. After
briefly considering the provisions of Orders VII and VIII of the CPC and
specifically Rules 3 to 5 thereof, it was observed as follows -?These three
Rules form an integrated code dealing with the manner in which allegations of
fact in the plaint should be traversed and the legal consequences flowing from
its non-compliance. The written statement must deal specifically with each
allegation of fact in the plaint and when a defendant denies any such fact, he
must not do so evasively but answer the point of substance. If his denial of a
fact is not specific but evasive, the said fact shall be taken to be admitted.
In such an event, the admission itself being proof, no other proof is
necessary.? Without adverting to Badat and Co. a Three-Judge Bench in Biswanath
Prasad ?vs- Dwarka Prasad, AIR 1974 SC 117 opined that an admission by a party
is substantive evidence in respect of which it is not a necessary requirement
that the statement containing the admission would not be put to the concerned
party because it is evidence pro prio vigore. In Nagindas Ramdas ?vs- Dalpatram
Iccharam, AIR 1974 SC 471 a Coordinate Bench had observed that ? ?admissions in
pleadings or judicial admissions admissible under Section 58 of the Evidence Act
made by the parties or their agents at or before the hearing of the case, stand
on a higher footing than evidentiary admissions. The former class of admissions
are fully binding on the party that makes them and constitute a waiver of proof.
They by themselves can be made the foundation of the rights of the parties. On
the other hand evidentiary admissions which are receivable at the trial as
evidence are by themselves not conclusive. They can be shown to be wrong?.
9. The significance attached to an admission in pleadings is also evident
from the string of precedents dealing with the amendments of pleadings
calculated to withdraw or nullify or dilute an admission. Justice Yogeshwar
Dayal, his Lordship as then was, held in Neera Graver ?vs- Narinder Jaggi, 21
(1982) DLT 33 that since the tenant had not denied the specific averment in the
eviction petition to the effect that the premises were for residential purposes,
this position must be treated to have been admitted by the tenant. An
admission to plead, by way of an amendment, that the premises were let out for
both residential and commercial purposes, was rejected as it would tantamount to
withdrawing an admission already made. To the same effect the Supreme Court had
in Sangramsinh P. Gaekwad ?vs- Shantadevi P. Gaekwad, AIR 2005 SC 809 held that
an admission made by the petitioner in a petition under Sections 397/398 could
not be permitted to be withdrawn through the device of an amendment. After
analysing the above-mentioned case, their Lordships opined in paragraph 29 that
?judicial admissions by themselves can be made the foundations of the rights of
the parties?.
10. In this analysis, there is no alternative but to conclude that the
Defendant Cipla Ltd. must be deemed to have admitted that the Plaintiffs?
products, including ?DALACIN C? are available for sale and distribution in Delhi
and furthermore that the Defendant?s products under the impugned mark are also
available for sale in Delhi. As categorically pleaded in the Plaint itself, the
cause of action has, therefore, undeniably arisen in Delhi. Documents become
unnecessary. Even in the absence of an admission facts can be proved by means of
Parol and/or documentary evidence. The Division Bench in Intas Pharmaceuticals
Ltd. ?vs- Allergan Inc., AIR 2007 Delhi 108 opined that Section 134 of the Trade
Marks Act does not override Section 20 of the CPC; rather it provides an
additional forum and place for filing the suit. Keeping in view the fact that
Defendant in that case had been selling the offending products in Delhi, the
Division Bench upheld the view of the learned Single Judge holding that courts
in Delhi possessed territorial jurisdiction to entertain the suit. The Division
Bench analysed and applied Dhodha House ?vs- S.K. Maingi, (2006) 9 SCC 41 and
thereupon concludes firstly that since the Plaintiff had pleaded in the plaint
that the Defendant was selling the offending product in Delhi, Delhi Courts
possessed territorial jurisdiction; secondly that Section 20(c) of the CPC makes
available, in addition to Section 134 of the Trade Marks Act, another forum of
adjudication. We are in entire agreement with the views expressed by our
Coordinate Bench. These apply on all fours to the case in hand since the
Defendant Cipla Ltd. before us must be deemed to have admitted that the
Plaintiffs? products are available for sale in Delhi and that their products are
also available for sale in Delhi. No further evidence, oral or documentary, has
to be produced by the Plaintiff to substantiate these facts.
11. The exposition of law to be found in Exphar SA ?vs- Eupharma
Laboratories Ltd., 2004 (28) PTC 251(SC) is apposite. Even if a deemed admission
is not drawn against the Defendant, the averments made in the Plaint must, in
interlocutory proceedings, be treated as true. The Supreme Court has observed
that when an objection to jurisdiction is raised by way of demurrer and not at
the trial, the objection must proceed on the basis that the facts as pleaded by
the initiator of the impugned proceedings are true. The submission in order to
succeed must show that granted those facts the Court does not have jurisdiction
as a matter of law. Unlike the case in hand, the Defendant before the Supreme
Court had denied the assertion that the Plaintiffs goods were not sold in Delhi.
A fortiori, when relevant pleadings are not denied, the Court would be falling
in error in not accepting as correct the factual version expressed in the
Plaint. A similar enunciation of the law is to be found in Laxman Prasad ?vs-
Prodigy Electronics Ltd., 2008 (37)PTC 209 (SC) : (2008) 1 SCC 618. A reading of
Laxman Prasad will unquestionably disclose that the Intas opinion now has the
imprimatur of the Supreme Court. Learned counsel for the Appellants has
elaborately quoted from Dhodha House but in our view this case does not help the
resolution of the conundrum before us.
12. The Preliminary Question which arose in Dhodha House was whether the
existence of jurisdiction under Copyright Act, 1957 would also enable the
clubbing of the dispute arising from the Trade and Merchandise Act, 1958. The
Supreme Court explained that existence of territorial jurisdiction by virtue of
one Act would not clothe that very Court with a determination of a dispute under
another Act only because of the provisions of Order II of the CPC (The parties
in the P.M. Diesel were also one of the Appellants in the Dhodha House matter).
Secondly, it had been observed that this Court had not adverted to the third
contention that had arisen in the matter, viz. whether the Defendant had been
selling its products on a commercial scale in Delhi. We think it necessary to at
once clarify that in P.M. Diesel averments made in the Plaint have not been
admitted in the Written Statement as is the case in the Pfizer Appeal. Our
attention has also been drawn to the observations made by their Lordships in
Dabur India ?vs- K.R. Industries, 2008 (37) PTC 332(SC) where it was reiterated
that since the primary ground upon which jurisdiction of the Delhi High Court
had been invoked was violation of the Trade and Merchandise Marks Act, 1958 the
provisions of Section 62(2) of the Copyright Act, 1957 could not be invoked.
This was also the ratio of Dhodha House. It was also observed that the Plaintiff
in Dhodha House was not a resident of Delhi; that he had not been able to
establish that it carried on any business at Delhi; for this purpose the
question as to whether the Defendant had been selling its produce in Delhi or
not was wholly irrelevant. The last of the three observations clarifies the
position pertaining to the place where the Plaintiff transacts business.
Section 134(2) of the Trade Marks Act, 1999 enables the Plaintiff to institute
any suit or proceedings in the District Court having jurisdiction over the
territories where it ?actually and voluntarily resides or carries business or
personally works for gain?. This is also what is postulated by Section 62(2) of
the Copyright Act, 1957. It was for this reason that their Lordships clarified
that it was wholly irrelevant whether the Defendant was selling its products in
the place where the suit had been filed. However, if the territorial
jurisdiction is invoked by the Plaintiff on the ground of the cause of action
having arisen in the form of sale of offending goods within the territories of
that Court, the question of Defendant?s activity would become relevant and the
Plaintiffs activity would become irrelevant. If the Plaint discloses that the
Defendant has violated the Plaintiff?s Trademark or Copyright in a particular
place, the cause of action would arise therein and the observations in Laxman
Prasad would clothe that Court with jurisdiction.
13. We approve the approach adopted in Pfizer Products Inc. ?vs- Rajesh
Chopra, 2006 (32) PTC 301 and in Boston Scientific International B.V. ?vs- Metro
Hospital, 2007 (136) DLT 278.
14. We are unable to appreciate the argument of learned Counsel for the
Defendant which found favour before the learned Single Judge that Liverpool and
London S.P. and I Association Ltd. ?vs- M.V. Sea Success I, (2004) 9 SCC 512
supports the Defendant?s case. Their Lordships had succinctly and perspicuously
covered the conundrum before us in these words:-
Rejection of plaint
139. Whether a plaint discloses a cause of action or not is essentially a
question of fact. But whether it does or does not must be found out from reading
the plaint itself. For the said purpose the averments made in the plaint in
their entirety must be held to be correct. The test is as to whether if the
averments made in the plaint are taken to be correct in their entirety, a decree
would be passed.
Dealing with the merits of the case their Lordships noted that so far as the
existence of a cause of action was concerned the documents filed along with the
pleadings should be looked into. This was in addition to the pleadings, in order
to explain or support them. Their Lordships did not enunciate that documents are
necessary even if facts stand admitted. This is an altogether different
situation from the ?return? of the Plaint, which is onerous only to the extent
that the same Plaint has to be filed in the Court which is competent to
entertain it. So far as the rejection of a Plaint is concerned, it is tantamount
to a dismissal of the Plaint and, therefore, the CPC justifiably enumerates the
circumstances in which such an order can be passed. It is trite that if a cause
of action has not arisen, a suit has to be dismissed. Secondly, if the proper
Court Fee has not been paid, and despite the opportunity the Plaintiff remains
recalcitrant in making up the deficiency, there is every justification for
dismissing the suit. Furthermore, if on a plain reading of the Plaint itself
its entertainment appears to be barred by any law, it would be reasonable for it
to be dismissed. Because of these implications, there is every reason that a
Judge must be fully satisfied before passing an order which would have serious
repercussions; therefore, it would be in the fitness of things for the Court to
also look at documents which are available on the records before passing an
order which virtually dismisses the suit, the only saving being that a fresh
suit is not barred.
15. We have already noted the provisions of the CPC which enable documents
to be filed at different stages of an adjudication of the plaint. Let us take
the case of a plaint which merely asseverates certain facts and does not
substantiate it by filing documents which may be available. In case the
Plaintiff is desirous of obtaining interim relief, it would be reasonable for
the Court not to act only on the pleadings. When the Court is called upon to
decide an application under Order XXXIX documents become relevant and,
therefore, they are required to be served on the opposite party for fear that on
failure the interim order would stand recalled. However, if an ex parte order is
not passed and a statement made in the plaint is admitted in the Written
Statement, documents or oral evidence would become superfluous. At no point had
their Lordships indicated that if documents have not been filed substantiating
the averments made in a Plaint, the suit is liable to be dismissed. Myriad
problems will arise if documents are to be looked at for the purposes of
rejection of a plaint. At what stage of the proceedings must this exercise be
carried out? Certainly, it is not possible to rely or take note of documents
which are yet to be proved. Therefore, apart from very unlikely event where a
document stands admitted by the Defendant at the earliest stages of the
litigation, it would be of little or no use to act upon them. However, if the
Court is of the view that the suit is vexatious or has palpably been filed in a
Court which does not possess jurisdiction, it is fully empowered to proceed
under Order X of the CPC. Rule 1 thereof enables the Court to ascertain from the
either parties before it whether it admits allegations of fact made in the
Plaint or the Written Statement. Rule 2 thereof also postulates the Court
examining any party to the lis with a view to elucidating matters in controversy
in the suit or in answer to any material question relating to the suit.
Obviously, this course could also be adopted by Courts to decide an issue which
requires evidence to be adduced. Of course, the Court will take recourse to this
provision only if it has, of its own, come to the conclusion that the litigation
is an abuse of the process of Court. Otherwise, the provisions of Order XIV Rule
2 enjoin that Issues both of law and of fact would be decided at the end of
suit. The said Rule envisages that if an Issue relating to the jurisdiction of
the Court is an Issue of law only, in contradistinction to an Issue both of law
and of fact, it may try such an Issue first. Seen from all perspectives,
therefore, it would be in very rare cases (such as an admission of fact by the
adversary) that a plaint can be returned or rejected, as the case may be.
Otherwise, as applies to both the Plaint and the Written Statement, the
pleadings at the initial stages must be approached as if they are correct either
for rejecting the plaint or decreeing the suit. This is what Liverpool holds as
it reiterates the established position that pleadings at the initial stages must
be taken as a true and correct narration of events.
16. For the manifold reasons mentioned above, FAO(OS) 356/2008 is
accepted. Since the Defendant has not specifically traversed the pleadings
pertaining to the territorial jurisdiction of this Court, the position is that
the Plaintiffs would not be required to lead any evidence on this aspect of the
case. That being so, it is beyond cavil that the Plaint ought not to have been
returned. The distinction between the return of a Plaint to facilitate its
filing in a Court possessing territorial jurisdiction and the rejection of a
Plaint on the ground that a cause of action has not been made out, is extremely
poignant and important.
17. So far as FAO(OS) 428/2008 (P.M. Diesels) is concerned, the position
is very clear, as their Lordships have remanded the matter to this Court to
decide the third contention raised therein, namely, whether the Defendant was
selling the offending goods in Delhi, which could be decided only after evidence
has been brought on record. Additional to this undebatable position, since P.M.
Diesels had pleaded that the Defendant was selling offending goods in Delhi, the
Court had perforce to proceed at the present stage of the lis on the assumption
that the averment to this effect was verily true. Therefore, the Plaint could
not have been returned. This Appeal is also allowed. However, we take note of
the statement pleaded in the Appeal to the effect that before the Learned Single
Judge, the learned Senior Advocate for the Plaintiff/Appellant had ?offered that
he had no objection if the present suit along with the pending applications and
the injunction granted by this Hon?ble Court, is transferred to the Court at
Rajkot and proceedings start at Rajkot from the stage as at present before this
Hon?ble Court? (paragraph 22). In view of the submission we return the Plaint
along with all the other pleadings to the Plaintiff for filing in the Courts in
Rajkot. Certified copies of the entire Paper-Book be retained and dispatched to
Record Room.
18. We set aside the impugned Order but there shall be no order as to
costs.
( VIKRAMAJIT SEN )
JUDGE
October 24, 2008 ( S. L. BHAYANA )
tp JUDGE
FAO(OS)356/20080Page 1 of 20
|
|
