Advance Magazine Publishers Inc v. Bombay Rayon Fashions Ltd & Ors

NAVIN CHAWLA, J SEPTEMBER 29, 2020 RN

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 10.09.2020 Date of Decision : 29.09.2020 + TR.P.(C.) 39/2020 ADVANCE MAGAZINE PUBLISHERS INC ..... Petitioner Through: Ms.Anuradha Salhotra, Mr.Sumit Wadhwa, Ms.Saugaat Khurana & Mr.Mukul Kochhar, Advs. versus BOMBAY RAYON FASHIONS LTD & ORS. ..... Respondents Through: Ms.Mamta Jha, Adv. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition has been filed seeking transfer of the suit bearing TM No.16/2017 titled Advance Magazine Publishers INC vs. Bombay Rayon Fashions Ltd., from the Court of the learned Additional District Judge-5, (South-East), Saket to the Court of Sh.Sanjay Sharma-II, who is presently posted as the Additional Sessions Judge-3, Central, Tis Hazari Courts. 2. It is the case of the petitioner that the petitioner had filed the above suit seeking permanent injunction, infringement of trademark, passing off and damages against the respondents on 22.03.2017. By an order dated 04.12.2017 passed by the Supreme Court in SLP(C) No.32865/2017, it was directed that the suit be disposed of within a year from the date of the Page 2 order. Recording of the evidence in the abovementioned suit was concluded on 17.12.2019. 3. Due to the outbreak of COVID-19 pandemic and the restricted functioning of the Courts, final arguments in the suit could not be addressed. The same commenced on 04.08.2020 and the petitioner concluded its arguments on 14.08.2020. 4. By a Notification dated 26.08.2020 issued by the Delhi High Court, Mr. Sanjay Sharma-II, who was hearing the suit, was transferred from his post of Additional District Judge-5, South-East, Saket as Additional Sessions Judge-3, Central, Tis Hazari Courts with effect from 07.09.2020. 5. The learned Presiding Judge in his order dated 27.08.2020, informed the parties about his transfer, however, at the request of the learned counsels for the parties, continued to hear the arguments in the suit as the suit involved a number of witnesses and voluminous documents and the learned Judge had already expended considerable time in hearing arguments. 6. The suit was thereafter heard by the Presiding Judge on 27.08.2020 and 28.08.2020, and was fixed for further arguments on 08.09.2020, as the learned counsel for the respondents had also submitted that a joint request shall be mentioned before this Court for seeking transfer of the suit to the learned Judge, who as noted above, had been posted as an Additional Sessions Judge, Central, Tis Hazari Courts. Page 3 7. The learned counsel for the respondents, who appeared on an advance notice and waived the right to file a reply to the petition, submits that while she has no objection to the transfer of the suit, her only concern is that as the learned Judge is now posted as Additional Sessions Judge, he may not be competent to hear this suit. Placing reliance on the judgments of the Supreme Court in Harshad Chiman Lal Modi vs. DLF Universal Ltd. & Anr., (2005) 7 SCC 791 and Hasham Abbas Sayyad vs. Usman Abbas Sayyad & Ors., (2007) 2 SCC 355, she submits that where a Court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, it cannot take up the cause or matter, and any order passed by such Court would be a nullity. 8. She further places reliance on the judgment of this Court in Mohd. Zafar vs. State MANU/DE/0126/2020, to submit that in a reverse case, where transfer of a criminal appeal was being sought from the Court of the Additional Sessions Judge to the same Presiding Officer who had by then been posted as an Additional District Judge, this Court had refused the transfer on the ground that such transfer will not be in the interest of justice and the arguments, since only heard in part by the Additional District Judge, can be addressed to the incumbent. 9. The learned counsel for the respondents further submits that the Courts at Tis Hazari would otherwise also lack territorial jurisdiction to entertain the suit. 10. On the ot