News & Updates

November 27, 2017

B.M.K. Marketing and Ors. v. KRBL Limited, 2017 (72) PTC 105 (Del)

In this case, a petition was filed under Article 227 of the Constitution of India against the order of the Additional District Judge, Patiala House Courts, New Delhi dismissing the petitioners/defendants application under Order VII Rule 10 of the Code of Civil Procedure (CPC), 1908 for return of plaint in the suit filed by the respondent/plaintiff.

The Hon’ble Court first went on the adjudicate on the matter of admissibility of the petition under Article 227 of the Constitution of India when a remedy already existed under Section 115 of the CPC for revision of the order passed by the Additional District Judge. On this issue, the petitioners/defendants pleaded 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." The Court discussed the judgment in Surya Dev Rai v. Ram Chander Rai1 wherein the Hon’ble Supreme Court had held the – ‘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.’

In the present case, while the Hon’ble Delhi High Court observed that "…this Court should not continue to entertain petitions which should have been filed under Section 115 of the CPC but wrongly have been filed under Article 227 of the Constitution of India…", it went on to admit the petition with the observation that "…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."

The Hon’ble Delhi High Court, after admitting the petition, moved on to the merits of the petition. With respect to the territorial jurisdiction of the Court, the respondent/plaintiff had contended that “The Defendants are not only making the retain (sic) 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…”. The respondent/plaintiff further averred that “The defendants are making clandestine and surreptitious sales, offering for sale, and are also supplying, purveying, displaying, and soliciting (also through its website www.saffronwala.com), have intention to sell their impugned goods and business under the impugned trade mark/label in New Delhi area…The carrying of business by the defendants in New Delhi (vide abovesaid acts and/or violations) as well as whole or part of cause of action for filing the suit has arisen within the territorial jurisdiction of this Hon’ble Court within the meaning of Section 20 of Code of Civil Procedure, 1908”.

On the aspect of territorial jurisdiction, the respondent/plaintiff further stated that the “The plaintiff is having registered office in Delhi and is selling the goods under the said trademark/label… in New Delhi market… Further, the plaintiff is maintaining its website Portal ecommerce website www.krblrice.in which is interactive in nature and having accessibility within the Jurisdiction of the Hon'ble Court.”

The counsel for the petitioners/defendants contended that the plaint has to be read meaningfully and the clever drafting by the Advocate for the respondent/plaintiff should not be permitted to create territorial jurisdiction where none exists. They further contended that the petitioners/defendants in the present case are at Srinagar and Telangana and no cause of action has accrued to the respondent/plaintiff against the petitioners/defendants within the territorial jurisdiction of this Court. They further contended that the respondent/plaintiff had not placed any document before the Court to support its pleas in the plaint. The counsel for the petitioners/defendants further stated that the petitioners/defendants do not sell their goods in Delhi.

The petitioners/defendants placed reliance on the case of Begum Sahiba Sultan v. Nawab Mohd. Mansur Ali Khan2 wherein the Supreme Court had observed that ‘though at the stage of consideration of the application under Order VII Rule 10 of the CPC it is only the plaint which is to be looked into but the plaint has to be read in a meaningful manner to find out the real intention behind the suit.’ The Court stated that reliance cannot be placed on the judgment of this case as there is a difference between ‘meaningful reading of the plaint, to fathom what is the real claim therein’ and ‘determining the truth or falsity of the averments in the plaint’.

On the other hand, the respondent/plaintiff relied on the case of the Allied Blenders & Distillers Pvt. Ltd. v. Prag Distillery Pvt. Ltd.3 wherein the Court held that ‘once the allegations were found in the plaint, which if proved vested this Court with territorial jurisdiction, the Court could not go into the correctness or falsity thereof.’

The Hon’ble Court also discussed the judgment in the case of Kuldeep Singh Pathania v. Bikram Singh Jaryal4 wherein the Court held that “…the Court has to take a decision looking at the pleadings of the plaintiff only not on the rebuttal made by the defendant or any other material produced by the defendant.”

After hearing the arguments of either side, the Hon’ble Court, in the present case, observed that “Applications under Order VII Rule 10 applications are not to be decided taking a prima facie view qua territorial jurisdiction. In fact, the Courts have with respect to framing of preliminary issue qua the aspect of territorial jurisdiction also held that the issue, when a mixed question of law and fact, cannot be ordered to be treated as a preliminary issue.” The Court finally held that the factual disputes which arise as to territorial jurisdiction i.e. whether the averments are true or not, can only be decided only after trial. Consequently, the Court held that the application under Order VII Rule 10 CPC has been rightly dismissed by the learned Additional District Judge.

1(2003) 6 SCC 675

2(2007) 4 SCC 343

32017 III AD (Delhi) 633 (DB)

4(2017) 5 SCC 345

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