JUDGMENT
J.D. Kapoor, J.
1. This is an application under Order 14 Rule 2 Sub-rule (a) and Sub-rule 2(b) read with Section 7 and 10 CPC and Section 151 CPC seeking dismissal of the suit in its present form or in the alternative to return the plaint for filing the same in the appropriate Court on the short ground that this Court has no territorial jurisdiction to try the instant suit. A similar application has also been filed by way of IA No. 3455/2000. Both the applications stand decided by this order because of the commonality of the relief.
2. The plaintiff is a Fashion Designer and manufacturers and sells Fashion Garments for ladies in the trading style of Ritu’s Boutique. The plaintiff’s garments are identifiable on account of the originality of the fabric prints. The garments so manufactured have element of exclusivity bearing creative original prints resulting in complex printed textiles and produced in limited editions to certain exclusivity. This involves expensive and time consuming Research & Development of the fabric prints. Various steps involved in creating and designing of the prints have been detailed in para 6 of the plaint.
3. On the aforesaid premise the plaintiff has sought permanent injunction restraining the defendants, their respective proprietors or partners, their officers, servants, agents and all others acting for an on their behalf from reproducing, printing, publishing and distributing or offering to sell prints in any form whatsoever that are a colourable imitation or substantial reproduction of the plaintiff’s drawing/sketches, templates, film tracings, screens, engravings and/or fabric designs pertaining to ‘Kulah’, ‘Ambi Bandhini’ and ‘Sangmarmar’ and/or any other prints enumerated in the plaintiff’s catalogue amounting to infringement of the plaintiff’s copyright.
4. The jurisdiction of this Court has been invoked by the plaintiff mainly on the following premise:
(a) That the plaintiff company was formed in the year 1976 and in January, 1997 it took over the business of two running partnership concerns namely Ritika, formed in 1972 and Ritu’s Boutique formed in 1969 and with effect from 22.5.96 the plaintiff became a deemed public limited company under Section 43(1A) of the Indian Companies Act, 1956.
(b) That the plaintiff has its registered office at Calcutta and Head Office at E-4, Hauz Khas, New Delhi besides several outlets in Delhi.
(c) That the plaintiff runs a printing and processing plant in Calcutta and has a manufacturing base in New Delhi. It also exports and retails readymade garments.
On the contrary territorial jurisdiction of this Court has been challenged by the defendant mainly on the following grounds-
(i) That the plaintiff has not only its registered office at Calcutta, it has also a trading and processing plant at Calcutta and has been carrying on its business from the said registered office.
(ii) Even as per averment of the plaintiff the cause of action arose when the representative of the plaintiff who works for gain in Calcutta purchased one salwar suit from the defendants which was similar to the one manufactured by the plaintiff.
(iii) Since the plaintiff is registered under the Companies Act it cannot file the suit nor can create cause of action either by actually or voluntarily residing at New Delhi as a Director of the defendant company or by serving a notice there from. The jurisdiction is determined on the basis of the registered office of a company and of the place where the alleged violation is committed or detected.
(iv) Even while obtaining the Sales Tax the plaintiff company did not mention that it has also an office in Delhi.
(v) Though there is a separate and independent company Ritika Private Limited formed by Ritu Kumar but the suit has been filed on behalf of the Ritika Limited which is an independent company. Since the plaintiff was not in possession of any documents pertaining to Ritika Limited having its office at Delhi it has filed the documents of Ritika Private Limited to give the impression that Ritika Limited and the Ritika Private Limited are one and the same.
(vi) That the plaintiff has exploited the certificate or registration in respect of design named as “Embroided Kurta” or “Sangmarmar” in the name of the plaintiff, a company situated at Calcutta. In pursuance of and subject to the provisions of Design Act, 1991, the Authority had issued the said certificate with a note that the certificate is not for use in legal proceedings.
5. The jurisdiction of this Court has been invoked under Section 62(2) of the Copy Right Act.
6. Section 62(2) provides that the Court shall have the jurisdiction within the local limits of whose jurisdiction the plaintiff carries on business or voluntarily or actually resides. As against this Section 20 of the CPC provides that the plaintiff shall sue in a Court within the local limits of whose jurisdiction the defendant carries on its business or voluntarily or actually resides.
7. The short question involved for determination is whether the fact that plaintiff has a Head Office at Delhi and has been carrying on a business in Delhi entitles it to maintain a suit for infringement of the Copy Right in New Delhi under Section 62(2) of the Copy Right Act. It may be stated at the very outset that Section 62(2) of the Copy Right Act, 1957 reverses the rule of territorial jurisdiction laid down in Section 20 of the CPC in expressed terms and permits the plaintiff to sue where the plaintiff carries on a business or voluntarily or actually resides. This is apparent from the provisions of Section 20 which are as under :-
“20. Other suits to be instituted where defendants reside or cause of action arises – Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction –
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry or business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.”
8. Mr. Praveen Anand, learned counsel for the plaintiff has contended that the cause of action is not based on the legal notice sent from Delhi as the basis for cause of action is mainly that the activities of the plaintiff are being carried out at the Hauz Khas Office and various other outlets in Delhi and as such the Delhi Courts have the jurisdiction irrespective of the fact that the plaintiff’s Registered Office is at Calcutta. It is further contended that by virtue of having Head Office and business activities at Delhi, Section 62(2) of the Copy Right Act equips the plaintiff with the right to file the suit at Delhi. In this regard the plaintiff has relied upon the affidavit of Ritu Kumar wherein it has been deposed that the plaintiff is carrying on its activities at Hauz Khas New Delhi and therefore the allegation that the plea of having Head Office has been introduced in the plaint to invoke the jurisdiction of this Court is baseless.
9. The objection that the plaintiff company has registered office in Calcutta and therefore cannot invoke the jurisdiction of Delhi Courts has no force as it is averred that the two Boutiques were started by Ritu Kumar it 1961 one in Calcutta and another in Delhi and since then those Boutiques are engaged in the business activities of the plaintiff company. Mere having a registered office in Calcutta does not oust the jurisdiction of this Court.
10. Large number of documents have been filed by the plaintiff showing its activities being carried out in Delhi at its Head Office at Hauz Khas and various other out lets in the city. Some of these communications are from the Government Departments.
11. This is a suit filed by the plaintiff company seeking permanent injunction against infringement of its Copy Right under the Copy Right Act, 1957. Section 62 of the Act is more or less a self-contained Code so far as the jurisdiction in relation to matters arising under the Copy Right Act is concerned.
12. As a matter of fact Sub-section (2) of Section 62 defines the ‘District Court’ having jurisdiction as a Court within the local limits of whose jurisdiction at the time of institution of the suit or other proceedings or where there are more than one such persons any of them actually or voluntarily resides or carries on business or personally works for gain.
13. Mere circumstance of having a registered office at Calcutta or non-mentioning of the place of Head Office while applying for Sales Tax or purchase of the goods identical to or copied from the goods of the plaintiff by its representative from Calcutta is of no relevance if the plaintiff fulfills or comes within the ambit of any of the ingredients contained in Section 62 of the Copy Right Act.
14. Lastly the confusion between the Ritika Limited and Ritika Private Limited created on the basis of certain documents relating to the period from 1976 to 1996 mentioning the name of the company as Ritika Private Limited stands cleared in view of the documents filed subsequent to 1996. All these documents were in the name of Ritika Limited. However this position has been clarified in para 2 of the plaint wherein it was mentioned that in the year 1976 Ritika Private Limited was formed and in the year 1977 it took over the business of two running partnership concerns namely Ritika formed in 1972 and Ritu’s Boutique formed in 1969 the plaintiff became a deemed public limited company under Section 43(1A) of the Indian Companies Act, 1956. Thus the plaintiff company has to be read as Ritika Private Limited company as both the companies are one and the same except that by virtue of law the status of Ritika Private Limited has changed to Ritika Limited. This is also evident from the certification of incorporation of 1996 wherein the company was incorporated as Ritika Private Limited and in 1996 it was converted as per letter dated 22.5.96.
15. Foregoing reasons pursuade me to dismiss the application. The preliminary issue as to the cause of action framed in the application is answered in favor of the plaintiff.
S. 2283/99
16. The defendants are hereby directed to file the written statement within eight weeks. Replication be filed within four weeks thereafter.
17. List on 12th July, 2002.