INDOVAX PVT. LTD Vs. MERCK ANIMAL HEALTH

JUDGEMENT

(1.) IA No. 3417/2014 (by D-3 U/o VII R 11 and u/O VIII R 1 r/w section 151 CPC)

(2.) In the application, the applicant has alleged that this Court has no territorial jurisdiction on the ground that for a suit for passing off, the territorial jurisdiction of the Court has to be determined under Section 20 of Civil Procedure Code (hereinafter referred to as 'CPC'). It is alleged that the defendants are neither residing nor carrying on the business in Delhi as per the averments in the plaint itself. It is further submitted that no cause of action has also arisen within the territorial jurisdiction of this Court. The benefit of Section 134 of Trademark Act is not available in a suit of passing off action. It is submitted that the plaintiff had initially filed a suit on the basis of a single invoice issued in Jind, Haryana in support of his contention that cause of action had arisen within the jurisdiction of this Court and no other document was filed along with the original plaint to prima facie show that the cause of action had arisen within the jurisdiction of this Court. Subsequently, however, the plaintiff filed on record three invoices of one 'Baxi Medical Stores' in Delhi on 16th November, 2013 along with the amended plaint. These invoices are dated October 29/30, 2013 i.e. obtained after the filing of the present suit. These invoices purported to be issued not to the plaintiff but to the third parties i.e. Yadav Research and Breeding Farm, S.K. Breeding Farm and Kegg Farms (P) Ltd and there is no pleading or document to establish any connection of these three entities to the plaintiff or to the defendants and there is no explanation as to how the plaintiff had obtained any of these three invoices. It is further contented that the Local Commissioner, appointed by the Court vide its order dated 18.11.2013, to ascertain the source from where Baxi Medical Stores obtained the stock of medicines which it sold under these three invoices. The Local Commissioner in its report dated 26th November, 2013 has clearly stated that Baxi Medical Stores sourced the stock from Karnal, Haryana and that the proprietor of the said store had also admitted that he is not a distributor of defendants and had merely procured the three vials of product INNOVAX from outside Delhi. It is submitted that these facts clearly show that these three invoices had been filed by the plaintiff to set up the territorial jurisdiction in Delhi and thus the plaintiff is engaging in forum shopping. It is submitted that these three invoices which were neither issued by defendants nor by any of their authorized representative/dealer are not sufficient to give territorial jurisdiction to the Delhi Courts. It is further contended that admittedly the defendants are neither residing nor carrying on its business nor have any manufacturing unit within the jurisdiction of this Court. This Court therefore lacks territorial jurisdiction and the plaint is liable to be returned.

(3.) The application is contested by the plaintiff. It is contended that this Court has the territorial jurisdiction since the defendant's vaccines under the impugned trademark is available for sale in Delhi and also that the defendants through their agents are peddling their vaccines in Delhi. In the unamended suit, the plaintiff had relied on an invoice dated 05.10.2013 which shows that the defendants are passing off their goods through Balvindra Medical Hall. The plaintiff's client namely Chaudhary Poultry Farm, Najafgarh, New Delhi had purchased the goods of the defendants from Chaudhary Poultry Farm and this fact is sufficient to give jurisdiction to the Court. The plaintiff in an amended plaint has explained that when the suit came up for hearing before the Court on 25.10.2013, in order to satisfy the judicial conscience of the Court on the issue of territorial jurisdiction sought permission to produce more invoices to show the sale of the defendant's vaccines in Delhi. It, thereafter, conducted investigations and learned that Baxi Medical Stores located in Khanna Market, Tis Hazari, possess the defendant's vaccines for sale and after sustained investigation learnt on 29.10.2013 and 30.10.2013 that defendant's goods under the impugned trademark INNOVAX were sold by Baxi Medical Store to three different persons in Delhi. The plaintiff thereafter requested Kegg Farms (P) Ltd (one of the three buyers) to provide copy of the invoices issued by Baxi Medical Store and thereafter obtained the invoices of other two sales from Baxi Medical Store. As soon as the plaintiff got the invoices, it moved an application under Order 6, Rule 17 of CPC whereby it deleted its prayer for infringement of its trademark by the defendants and also included these invoices in the amended plaint. It is further contended that the Court was satisfied that it had territorial jurisdiction and that is why the Court allowed the amendment and issued the notice to the defendants. It is not disputed that the Local Commissioner visited Baxi Medical Store and recorded the statement of the proprietor.