SARANYA ZAVERI Vs. KAMADON ACADEMY PVT LTD

JUDGEMENT

(1.) The two defendants in O.S. No. 23/2005 on the file of the II Addl. District Court, Ernakulam, are the petitioners in this Writ Petition filed under Art.227 of the Constitution of India. The respondent herein is the plaintiff in the said suit. The aforementioned suit filed under S.26 read with O. VII, R.1 C.P.C. and S.134 of the Trademarks Act, 1999 and S.62(2) of the Copyright Act, 1957 is for a declaration that the plaintiff is the exclusive owner and proprietor of the marks Kamadon and Melchizedek Method of meditation technique and its innumerable logos, insignias, emblems, devices and materials and for a perpetual injunction restraining the defendants by themselves or through their directors, heirs, legal representatives, assignees, servants, agents etc. from using, deploying, advertising or otherwise adopting in any manner the marks Kamadon and Melchizedek or any deceptive imitation thereof and to render accounts of the profits made by them by the use of the mark Kamadon and Melchizedek Method or any mark similar thereto and also to direct the defendants to surrender the plaintiff for destruction of all infringing plates, wrappers, moulds, labels, blocks, dyes, prints, templates and such other materials bearing the name Kamadon and Melchizedek Method. In essence the right that is claimed by the plaintiff company is the exclusive right over the Melchizedek Method of meditation said to have been originated and perfected by the late Brian Terril spiritually known as Alton Kamadon and subsequently inherited by his son and legal heir Scott Terril who is claimed to have incorporated the plaintiff company viz. Kamadon Academy Proprietary Ltd., Australia, represented by its power of attorney Philip T. Paul residing at 33/2087, Sreekala Road, Vennala, Kochi - 28. Ext. P1 is a copy of the plaint in the aforesaid suit.

(2.) Petitioners herein who are the defendants in the suit filed Ext. P2 written statement on 22-7-2005 resisting the suit claim on various grounds. They contended inter alia that Philip T. Paul who has signed and verified the plaint had no authority to institute the suit, that Ext. P5 power of attorney deed dated 2-6-2005 could not be treated as a valid document authorizing the said Philip T. Paul to conduct proceedings on behalf of the Australian Company, Kamadon Academy Proprietary Ltd. and that since both the defendants are permanently residing at Chennai and so described in the plaint and there was no allegation that the defendants had committed any of the alleged acts within the limits of the Ernakulam Court, the Court at Ernakulam has no territorial jurisdiction to entertain or try the suit. The petitioners also filed I. A. No. 2578/2005 (Ext. P6) requesting the Trial Court to raise preliminary issues incorporating the above objections. The petitioners also filed Ext. P8 petition (I.A. No. 2577/2005) under O. VII, R.11 read with S. 21 and 151 C.P.C. for rejection of the plaint on the aforementioned objections. Accordingly, the court below on 25-7-2005 framed two preliminary issues as follows:

(3.) I heard Adv. Sri V. Giri, the learned counsel appearing for the petitioners/ defendants and Advs. M/s K. Sudhakaran and Uma Moorthy, the learned counsel appearing for the respondent/plaintiff.