B.M.K Marketing & Ors v. M/S Krbl Limited

RAJIV SAHAI ENDLAW, J. AUGUST 18, 2017 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 18th August, 2017 + CM(M) No.875/2017 and CM No.29231/2017 (for stay) B.M.K MARKETING & ORS ..... Petitioners Through: Mr. Jayant Mehta with Mr. Jaspreet Singh and Ms. Disha Malhotra, Advs. Versus KRBL LIMITED ..... Respondent Through: Mr. S.K. Bansal, Mr. Vinay Kumar Shukla, Mr. Ajay Amitabh Suman and Mr. Kapil Kumar Giri, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW Caveat No.729/2017. 1. The counsel for the Caveator has appeared. 2. The Caveat stands discharged. CM No.29232/2017 (for exemption). 3. Allowed, subject to just exceptions. 4. The application stands disposed of. CM(M) No.875/2017 and CM No.29231/2017 (for stay). 5. This petition under Article 227 of the Constitution of India impugns the order (dated 18th May, 2017 in TM No.51/16 of the Court of Additional District Judge-03, Patiala House Courts, New Delhi District) of dismissal of the application under Order VII Rule 10 of the Code of Civil Procedure, 1908 (CPC) filed by the petitioners / defendants for return of the plaint in the suit filed by the respondent / plaintiff for injunction and ancillary reliefs against passing off. 6. I have enquired from the counsel for the petitioners / defendants whether not the order of dismissal of an application under Order VII Rule 10 of the CPC would be revisable under Section 115 of the CPC. 7. The counsel for the petitioners / defendants states that since the jurisdiction of this Court under Section 115 of the CPC and under Article 227 of the Constitution of India is alike, the said question need not come in the way of consideration of this petition. Reference is made to Surya Dev Rai Vs. Ram Chander Rai (2003) 6 SCC 675. 8. Supreme Court in para 26 of Surya Dev Rai supra itself has said that the High Court would be justified in refusing to exercise jurisdiction under Article 227 of the Constitution of India with respect to orders remedy whereagainst is provided in the CPC or under some other Statute. To the same effect are i) Sadhana Lodh Vs. National Insurance Co. Ltd. (2003) 3 SCC 524; ii) State Bank of India Vs. Allied Chemical Laboratories (2006) 9 SCC 252; iii) Bijay Kumar Duggal Vs. Bidya Dhar Dutta (2006) 3 SCC 242; iv) Ajay Bansal Vs. Anup Mehta (2007) 2 SCC 275; and, v) Seth Rattan Chand Vs. Pandit Durga Prasad (2003) 5 SCC 399. 9. It is thus felt that this Court should not continue to entertain petitions which should have been filed under Section 115 of the CPC but have wrongly been filed under Article 227 of the Constitution of India and which is leading to the bar not following the law as it should. 10. Though I have been rejecting such petitions but on the assurance of the counsel for the petitioners / defendants that he will take care in future, the counsel for the petitioners / defendants has been heard on merits. 11. The respondent / plaintiff, in paras 41 and 43 of the plaint, has pleaded as under with respect to the territorial jurisdiction of the Court at Delhi:- "41. The Plaintiff also learnt that the Defendants are carrying on its impugned activities under the impugned Trade Mark / Label in a clandestine and surreptitious manner and that too without issuing formal sale bills. The Defendants are not only making the retain sales but is also supplying the impugned goods bearing the impugned Trade Mark / Label to various other dealers / shopkeepers / retailers including in New Delhi area, who are making the clandestine and surreptitious sales thereof to the unscrupulous traders and manufacturers of the counterfeit products of the Plaintiff under the said Trade Mark / Label in the markets of New Delhi area viz. Connaught Place, Gole Market, Bengali Market, Chankyapuri, Mandir Marg etc. In any case the alleged user of the Defendants are illegal and void-ab-initio. 43. That this Hon'ble Court has the territorial jurisdiction to try and adjudicate the present suit. The defendants are making clandestine and surreptitious sales, offering for sa