November 24, 2022
CHANDRA KISHORE CHAURASIA vs R.A PERFUMERY WORKS PRIVATE LTD
In a recent case,a Division Bench of the Delhi High Court ruled that pre-institution mediation is only required when the plaintiff does not seek urgent relief. The Court heard the Appeal filed against an order passed by the District Judge returning the plaint citing the lack of territorial jurisdiction.
The factual background of the case:
Asuit was filed by one Mr. Chandra Kishore Chaurasiya, a resident of Uttar Pradesh who is in the business of selling chewing tobacco under his registered trademarks “1192” and “JAGMAG 1192”, he also held copyright registrations as well. When he found out that a company R.A. Perfumery Works Private Ltd was using an identical mark “SIGNAL 1191”and was also imitating the packaging, artistic format and colour combination of his registered trademark, he filed a case against the Defendant company for all egedly copying the artistic work and colour combination of its packaging and intentionally choosing a similar trademark to that the Plaintiff Mr. Chaurasiya was the owner of. The plaintiff also accused the defendant of manufacturing a similar kind of product and the same packaging for the sole purpose of making easy money as the plaintiff had an established enterprise in the tobacco industry.
Decision of District Court (Impugned Order)
The defendant as a counter to the suit filed an application under Order 7 Rule 10 and 11 for return of the plaint on two grounds, firstly that the Plaintiff has failed to establish the territorial jurisdiction and secondly, that the Plaintiffdid not comply with the requirements of Section 12A of the Commercial Courts Act.2015, so the plaint is liable to be returned if the remedy of pre- institution mediation is not exhausted.
With regards to the first objection, holding that Plaintiff has prima facie failed to show any concrete evidence, the Plaint was returned by the Court. The District Court however, for the second objection observed that since the Plaintiff was seeking urgent relief, there was no need of undergoing pre-institution mediation.
Appeal against the Order
The Plaintiff filed an appeal against the order of the District Court for his return of Plaint. TheRespondent/Defendant again raised a cross-objection before the Appellate Court by contending that as per section 12 A of the Commercial Courts Act, 2015, the Appellant/Plaintiff is required to indulge in pre-institution mediation with the defendant or otherwise an application of exemption has to be moved for the same. It was contended by the Respondent that they are not questioning the provision with regards to urgent relief but stated that the classifying of a case as seeking urgent relief cannot be solely decided by the Plaintiff and therefore an Application for exemption had to be moved by the Appellant/Plaintiff.
Question before the Court?
- Extent of Rejecting a Plaint under Order 7 Rule 10 of CPC.
- Whether the provisions of Section 12A of the Commercial Courts Act, 2015 are mandatory?
With regards to the rejection of plaint, the court observed that the examination for the purpose of an application under Order VII Rule 10 of the CPC is limited to the averments made in the plaint and the documents filed by the plaintiff. The High Court while relying on various judgments stated that what has to be seen is if prima facie from the plaint a cause of action has been established or not. It also stated that for Application for Order VII Rule 10, the Plaint has to be seen in demurrer and what has to be seen is that if the case is proved, the relief could be granted or not. So in conclusion, the court observed that since, the averments made by the Plaintiff with regards to the advertising, selling or soliciting to sell infringing goods within the territorial jurisdiction of the Court are clearly made out in the Plaint; the Application of the Defendant/Respondent is liable to be rejected.
- At the stage of considering an application under Order VII Rule 10 of the CPC, the court is not required to examine the merits of the averments made and to evaluate whether the plaintiff would be able to prove or establish the same. As noted above, for the purpose of an application under Order VII Rule 10 of the CPC, the averments made in the plaint are required to be considered as correct
With regards to the Respondent’s cross-objection, the Court observed that the plain reading of the Section 12A states that the category of suits that require urgent relief aren’t in question nor is there an ambiguity as to which suit requires such relief. But it is clear that any suit that requires urgent relief is exempted from the remedy of pre-institution mediation. It was also observed that there is no requirement of moving an application in case an exception is applied. The court stated that firstly there is no provision for moving an application for exemption to be made in a suit which requires urgent relief and secondly if any suit doesn’t require such relief, it cannot be instituted without exhausting the remedy of Pre-Institution Mediation.The Court has no discretion to exempt a plaintiff from the applicability of Section 12A(1). The seeking of urgent relief is solely based of the Plaintiff only and cannot be decided by the court.
The court disposed off the appeal and the cross objections raised by the Respondent by reversing the order of the District Court holding that the Appellant/Plaintiff had clearly made out territorial jurisdiction of the Court and reiterated that Pre-Institution Mediation is not mandatory in cases where the Plaintiff seeks urgent relief. The Court made it clear that no application for exemption from Pre-institution mediation is required under the Law, it is sufficient if the Plaintiff has made out explicit prayers for seeking urgent relief in the Plaint.
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