[TM Act] Booking Through Third Website Cannot Be Treated As Place Of Business So As To Invoke Territorial Jurisdiction To Try Such Suit: Delhi HC

While observing that though the Petitioner claimed to be carrying on business in Delhi, however there was neither any averment that the principal place of business of the review Petitioner was at Delhi nor the cause of action arose at Delhi, the Delhi High Court recently dismissed a petition seeking review of the judgment passed by the same Court whereby the application filed by the Respondent under Order VII Rule 10 of Code of Civil Procedure, 1908 (CPC) was allowed and the plaint was directed to be returned to be filed before the Court of competent jurisdiction.

Even in terms of Section 134(2) of the Trade Marks Act, this Court had no territorial jurisdiction to entertain the suit, added the Court.

The Single Judge Bench of Justice Mukta Gupta stated that “it was a well settled principal that an application under Order VII Rule 10 & 11 of CPC had to be decided by way of demurer based on the pleadings in the plaint. There was a difference between the pleadings with regard to the cause of action in the sense it was specifically stated that the principal office of the plaintiff was situated at Delhi whereas in the present case, the plaintiff had not made any such averment”.

Advocate Sai Krishna appeared for the Plaintiff, whereas Advocate Hemant Daswani appeared for the Defendant.

Going by the background of the case, the Review petitioner contended that its principal place of business was in Delhi and that the registered office and the principal place of business of a company need not necessarily be the same. It was stated that the principal place of business of a company could not be decided at the preliminary stage, and hence issue would have territorial jurisdiction to try and entertain the suit under Section 134 (2) of the Trade Mark Act,1999 (TM Act). Opposing the same, the Defendant submitted that the suit should be filed at Hyderabad and the present Court had no territorial jurisdiction to entertain the present suit as the defendant neither had its registered office within the jurisdiction of this Court nor carried on any business within the jurisdiction of this Court and interestingly, plaintiff’s registered office was in Mumbai.

After considering the submission, the High Court perused Section 134(2) of the TM Act which provided for an additional place of jurisdiction in addition to the jurisdiction vested in the Courts in terms of Section 20 of CPC.

The Bench observed that even if the Defendant had been able to attract customers from other jurisdiction including by way of Zomato and Dine-Out, the services of defendant could not be availed unless the customers go to Hyderabad since through Zomato and Dine-Out, they would only be able to invite customers and reserve a table at the restaurant of the defendant at Hyderabad and the commercial transaction would take place only at Hyderabad.

“Merely booking at Delhi for availing the services of defendant at Hyderabad would not give rise to cause of action at Delhi”, added the Bench.

The High Court navigated through Rule 3 of the Trade Marks Rules, 2017 and stated that the ‘Principal place for business in India’ meant where a person carried on business in the goods or services concerned in a trademark and if it was at only one place, that place would be treated as principal place of business in India, however, if the business was carried on in India at more places than one, the place mentioned by the person as the principal place of business in India would be treated so.

“The review petitioner in the present suit had no-where pleaded that Delhi was the principal place of business of the plaintiff/review petitioner in India”, added the Bench.

Accordingly, stating that Section 20 of the CPC could not be given such a wide interpretation, the High Court concluded that even if a booking through third website was to be treated as the defendant carrying on its business at that place, then, every place in India would have jurisdiction to try the suit.

Cause Title: Impresario Entertainment and Hospitality Private Limited v. S & D Hospitality [Neutral Citation: 2023: DHC: 3919]

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