INTAS PHARMACEUTICALS LIMITED Vs. ALLERGAN INC

JUDGEMENT

(1.) The issue that arises for consideration in this appeal is whether this Court has the territorial jurisdiction to try and entertain the suit, which was filed by the respondent herein.

(2.) The respondent as plaintiff filed a suit on the Original Side of this Court, praying inter alia for a decree of mandatory injunction and damages, as also for infringement of trade mark, passing off and unfair competition against the appellant/defendant in the suit. In the said suit, the respondent / plaintiff claimed that the plaintiff No.1 is a registered proprietor of the trademarks BOTOX and BTX-A in India. It was also stated by the respondent/plaintiff that this court has the territorial jurisdiction to try and entertain the suit as the offending product of the appellant/defendant is sold by the appellant/defendant in and around Delhi, within the jurisdiction of this court. The appellant, however, filed an application dated 23rd January, 2006, under Order VII Rule 11 of the Code of Civil Procedure, praying inter alia for rejection of the plaint for want of territorial jurisdiction. In support of the aforesaid contention and submission, the appellant heavily relied upon the judgment of the Supreme Court in the case of M/s Dhodha House v. S.K. Maingi reported as 2005 (10) SCALE 267.

(3.) The learned Single Judge considered the aforesaid plea raised by the appellant in its application and vide order dated 28th April, 2006 rejected the same holding that a part of the cause of action having arisen within the territorial jurisdiction of this court, the suit filed by the respondent cannot be dismissed for want of territorial jurisdiction. The aforesaid findings and the conclusions arrived at by the learned Single Judge are under challenge in this appeal. Mr.Bishwajit Bhattacharya, learned counsel appearing for the appellant vehemently submitted before us that while enacting the Trade Marks Act, 1999, a specific Section, namely, Section 134 has been enacted, which provides that a suit for infringement of a registered trade mark or for passing off cannot not be instituted in any court inferior to a District Court having jurisdiction to try and entertain the suit.