Radico Khaitan Ltd v. Nakshatra Distilleries & Breweries Ltd & Anr

RAJIV SAHAI ENDLAW, J MARCH 28, 2017 "gsr"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 28th March, 2017 + CS(OS) No.1891/2015 RADICO KHAITAN LTD. ..... Plaintiff Through: Mr. Sudhir Chandra, Sr. Adv. with Ms. Ishani Chandra, Mr. Sagar Chandra & Mr. Ankit Rastogi, Advs. Versus NAKSHATRA DISTILLERIES & BREWERIES LTD. & ANR. ..... Defendants Through: Mr. Hemant Singh, Mr. Shashi P. Ojha & Mr. Madhav, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW IA No.13501/2015 (under Order VII Rule 11 of the CPC) 1. The defendants viz. Nakshatra Distilleries & Breweries Ltd. and Waterfield Spirits Pvt. Ltd. in this suit (for injunction to restrain the defendants i) from launching, selling, manufacturing, marketing, offering for sale or in any manner dealing in any alcoholic beverages including but not limited to Gin, Rum and Vodka under the mark "GOA" and "GO4" and / or any other mark which is identical or deceptively similar to plaintiff"s trade mark "GOA" amounting to infringement of the registered trade mark Nos.628446 and 629645 in Class 33 in favour of the plaintiff; and, ii) from passing off their goods as that of the plaintiff and for ancillary reliefs), seek rejection of the plaint on the ground of this Court not having territorial jurisdiction to entertain the suit. 2. The application of the plaintiff being IA No.17297/2015 for amendment of the plaint, filed after this application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) is also pending consideration. Though an application for amendment of the plaint even if filed after the filing of an application under Order VII Rule 11 of the CPC has to be considered first but the amendment sought are not relatable to the ground of lack of territorial jurisdiction on which rejection of the plaint is sought. It is plea of the plaintiff in the application for amendment that though at the time of institution of the suit, the defendants had not launched their product bearing the mark "GOA" but have thereafter launched; hence the plaintiff seeks to amend the plaint to claim higher damages. Thus, notwithstanding the pendency of the application for amendment of the plaint, the counsels were heard on this application under Order VII Rule 11 of the CPC. 3. It is the plea of the defendants in the application dated 7th July, 2015 under Order VII Rule 11 of the CPC i) that the suit suffers from mis-joinder of causes of action; ii) that the plaintiff"s relief and claim for passing off is not maintainable on account of this Court not having jurisdiction to try the suit qua passing off since the defendants are neither residing in Delhi nor are carrying on their business within the territorial jurisdiction of this Court; no cause of action has arisen within the territorial jurisdiction of this Court; iii) that the two defendants have their registered office at Mumbai and Pune respectively; iv) that the defendant no.2 is in the business of marketing alcoholic beverages which are manufactured by the defendant no.1, in the State of Maharashtra alone; v) that alcoholic beverages is State Excise product and cannot be sold / marketed unless necessary label approvals are obtained from the respective State Excise Departments; vi) that the label approvals obtained by the defendants and which are subject matter of the present suit were applied for and obtained with the Maharashtra State Excise Department (MSED) and no approvals have been sought from the Delhi State Excise Department; vii) that after the defendant no.1 was granted label approvals by the MSED, the defendants have been marketing their products under the said labels only in the State of Maharashtra; vii) that the plaintiff has a office at Mumbai and a bottling unit in Aurangabad, Maharashtra; viii) that this Court lacks territorial jurisdiction to entertain the suit under Section 20 of the CPC as the suit does not disclose any cause of action with respect to passing off and also because the cause of action if any has arisen at Solapur / Mumbai where the d