RAJA UDYOG PVT. LTD. Vs. RAJA FOOD INDUSTRIES

JUDGEMENT

(1.) A point which is more or less settled is sought to be unsettled in the present application for revocation of the leave granted under Clause 12 and Clause 14 of the Letters Patent respectively.

(2.) The plaintiff filed the instant suit as registered owner of the trade mark alleging the infringement and passing off and prayed for decree for perpetual injunction against the Defendant. A leave under Clause 12 was sought as the Defendant is carrying on the business outside the jurisdiction of this Court. Such leave was granted. A further leave under Clause 14 of the Letters Patent was also sought and as the said provision mandates the issuance of show -cause, the Defendant was heard and the leave under the said clause was also granted on 8th July, 2015.

(3.) The contention of the Defendant/Applicant in this application is that Sec. 134(2) of the Trade Marks Act, 1999 though permits the suit based on infringement of the registered trade mark or relating to any right arising there from, to be instituted in Court of District Judge having jurisdiction within the local limits of whose jurisdiction the person instituting the suit actually or voluntarily resides or carrying on business or personally works for gain at the time of such institution and not in case of a passing off arising out of the use by the Defendant of any trade mark which is identical with or deceptably similar to the plaintiff's trade mark whether registered or unregistered. The said provision is sought to be interpreted by the Defendant/Appellant to mean that in case of a passing off, if admittedly the Defendant neither resides within the jurisdiction nor carries on any business therein, the same should be instituted before the Court within whose jurisdiction either the cause of action partly or wholly arises. In other words, it is sought to be contended that unless the ingredients of Sec. 20 of the Code of Civil Procedure is satisfied, the suit is incompetent before the Court if based on passing off.