SIMPSON AND COMPANY LTD. Vs. RHYTHM AGARWAL TRADING

JUDGEMENT

(1.) Aggrieved by the Judgement dtd. 21/10/2021 made in C.S.No.162 of 2019, the Appellant has preferred the above appeal.

(2.) The Appellant/Plaintiff had filed a suit before this Court against the Respondent/Defendant herein praying for a permanent injunction against the respondent from using the trademark "Radisson" and for a permanent injunction restraining the respondent from committing acts of passing off while dealing in paints bearing deceptively similar marks "Radisson" and for consequential reliefs. In the said suit, the Appellant filed an application in A.No.1661 of 2019 for combining the causes of action arising out of infringement of trademark and action of passing off. The learned Single Judge of this Court allowed the said application as the respondent had no objection for combining the causes of action. Thereafter, the respondent filed an application to grant him leave to serve interrogatories on the Appellant in A.No.1611 of 2021. The said application was closed by this Court by order dtd. 14/7/2021. The suit was posted for trial and the Appellant had examined their witness and marked 14 documents on their side. The respondent cross examined the Appellant's witness and the suit was posted for final arguments of the parties. At that stage, the respondent filed an application in A.No.3185 of 2021 under Order VII Rule 10 of C.P.C praying for return of the plaint to the Court of competent jurisdiction, stating that the suit filed by the Appellant was not maintainable before this Court for want of jurisdiction as the Appellant had suppressed relevant material facts in the plaint.

(3.) The respondent's case is that the Appellant had been operating business through its Branch office situated at B-136, Gate No.1, Prakash Industrial Estate, G.T.Road, Sahibabad, near Gyani Border, Ghaziabad, Uttar Pradesh - 201 005 and that the respondent is also carrying on business in the State of Uttar Pradesh at a "similar place" where the Appellant have their Branch office. Thus, their case is that since they are doing business mainly at Agra and the Appellant also have a place of business in Uttar Pradesh, the suit should have been filed only before the competent Court at Uttar Pradesh and prayed for return of plaint to the Court of competent jurisdiction, namely, Allahabad High Court.