IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 11035/2015 & CM APPL. 28492/2015 (STAY)

VIFOR (INTERNATIONAL) LIMITED                      ….. Petitioner

                                                         Through : Mr.Sudhir Chandra and Mr.Gopal Jain,

                                                                      Sr. Advs. with Ms.Vaishali Mittal,

                                                                       Mr.Siddhant Chamola, Mr.Aditya Gupta,

                                                                    Ms.Kritika Vijay and Ms.D.Neha Reddy,

                       Advs.

 

versus

 

THE HIGH COURT OF DELHI                              ….. Respondent

                                                                              Through : Mr.Sanjoy Ghose, Adv.

+ W.P.(C) 11043/2015 & CM APPL. 28506/2015 (STAY)

ASIAN PATENT ASSOCIATION ( INDIAN GROUP)   ….. Petitioner

                                                             Through : Ms.Pratibha M. Singh, Sr. Adv. with

                                                                      Ms.Radha Chawla, Mr.Devanshu Khanna

                                                                   and Ms.Tara Ganju, Advs.

versus

REGISTRAR GENERAL,DELHI HIGH COURT           ….. Respondent

                                                                       Through : Mr.Raj Shekhar Rao, Adv.

CORAM:

HON’BLE MR. JUSTICE G.S.SISTANI

HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

 O R D E R

03.12.2015

 

In this matter, we have had the benefit of hearing learned senior counsel appearing on behalf of the petitioners and counsel for the respondent.

The prayer made in these writ petitions being common is that the cases, arising out of the five Statutes i.e. Patents Act, 1970; Trademarks Act, 1999; Designs Act, 2000; Copyright Act, 2000; and The Geographical Indications of Goods (Registration And Protection) Act, 1999, of the value less than Rs.1.00 crore are not required to be transferred in view of the Proviso to Section 7 of the Commercial Court, Commercial Division and Commercial Appellate Division Ordinance, 2015 (hereinafter referred to as „Proviso to Section 7 of the Ordinance‟).

Section 7 and the First Proviso to Section 7 of the Ordinance reads as under:

All suits and applications relating to commercial disputes of a Secified Value filed in a High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of that High Court:

 Provided that all suits and applications relating to commercial disputes, stipulated by an Act to lie in a court not inferior to a District Court, and filled on the original side of the High Court, shall be heard and disposed of by the Commercial Division of the High Court.

Learned senior counsel appearing on behalf of the petitioners submit that as per the various Sections of the aforestated five Acts, a suit would not lie in any Court inferior to a District Court. In support of this submission, learned senior counsel rely upon the relevant Sections, Actwise, which read as under:

 

Statute Patents Act,  1970

 

Trademarks Act, 1999 Designs Act,2000

 

Copyright Act, 1957

 

Geographical Indications Of Goods (Registration And Protection)

Act, 1999

 

Relevant

Provisions

 

Section 104 Section 134: Proviso to

Section

 

Section 62 Section 66 –

Suit for

  Jurisdiction-

No suit for a

declaration

under section

105 or for any relief under section 106 or for

infringement

of a patent

shall be instituted in any court inferior to a

district court

having jurisdiction to

try the suit: Provided that

where a

counter-claim

for revocation

of the patent is made by the defendant, the suit, along with the counter-claim, shall be

transferred to

the High Court  for decision

 

 

Suit for

Infringement,

etc. to Be

Instituted

Before District Court

(1) No suit—

 

(a) for the

infringement of

a registered trade  mark; or

 

(b) relating to

any right in a

registered trade mark; or

 

(c) for passing

off arising out of the use by the defendant of any trade mark which is

identical with or

deceptively

similar to the

plaintiff‟s trade

mark, whether

registered or

unregistered,

shall be instituted in any court inferior to a District Court

having

jurisdiction to

try the suit.

For the purpose

of clauses (a)

and (b) of subsection

(1), a

“District Court

having

jurisdiction”

shall, notwithstanding

anything

contained in the Code of Civil

Procedure,1908

or any other law for the time

being in force,

include a District

Court within the local limits of whose

jurisdiction , at

the time of the

institution of the suit or other proceeding, the

person

instituting the

suit or

proceeding, or,

where there are

more than one

such persons any of them, actually and voluntarily resides or carries on business or

personally works for gain.

more than one

such persons,

any of them

actually and

voluntarily

resides or carries on business or

personally works for gain.

 

 

22(2)

 

No suit or

any other

proceeding

for relief

under this

subsection

shall be

instituted in any court below the

court of

District

Judge.

 

Jurisdiction of

court over

matters arising

under this

Chapter-

(1) Every suit or

other civil

proceeding

arising under

this Chapter in

respect of the

infringement of

copyright in any

work or the

infringement of

any other right

conferred by this

Act shall be

instituted in the

district court

having

jurisdiction.

(2) For the

purpose of subsection

(1), and

“district court

having

jurisdiction”

shall,

notwithstanding

anything

contained in the

Code of Civil

Procedure, 1908,

or any other law

for the time

being in force,

include a district

court within the

local limits of

whose

jurisdiction, at

the time of the

institution of the

suit or other

proceeding, the

person

instituting the

suit or other

proceeding or,

where there are

more than one

such persons

any of them,

actually and

voluntarily

resides or

carries on

business or

personally

works for gain

infringement,

etc., to be

instituted

before district

court

(1) No suit,—

(a) for the

infringement of

a registered

geographical

indication; or

(b) relating to

any right in a

registered

geographical

indication; or

(c) for passing

of arising out of

the use by the

defendant of

any

geographical

indication

which is

identical with

or deceptively

similar to the

geographical

indication

relating to the

plaintiff,

whether

registered or

unregistered,

shall be

instituted in any

court inferior to

a district court

having

jurisdiction to

try the suit.

(2) For the

purpose of

clauses (a) and

(b) of subsection

(1), a

“district Court

having

jurisdiction”

shall,

notwithstanding

anything

contained in the

Code of Civil

Procedure,

1908 (5 of

1908) or any

other law for

the time being

in force,

include a

District Court

within the local

limits of whose

jurisdiction, at

the time of the

institution of

the suit or other

proceeding, the

person

instituting the

suit or

proceeding, or,

where there are

.

Explanation.—

for the purposes

of sub-section

(2), “person”

includes the

registered

proprietor and

the authorised

user.

 

It is the submission of learned senior counsel for the petitioners that a reading of the Proviso to Section 7 of the Ordinance would show that all the suits and applications relating to commercial disputes stipulated by an Act to lie in a court not inferior to a District Court would pertain to the above five Acts. Interpreting this proviso further, it is submitted that in case any suit arising out of the above five Acts has already been filed on the Original Side of the High Court, the same is to be heard and disposed of by the Commercial Division of the High Court, as per the Proviso to Section 7 of the Ordinance. In effect, the suits pending in this case arising out of the five Acts even if their value is less than Rs.1.00 crore, is to be tried by the Commercial Division of the High Court.

Additionally, it is submitted that in case an application for amendment of the plaint is filed, the respective Single Judges must hear and consider the same in accordance with law, as counsel contend that there are decisions, as per which, an amendment application can be entertained even if the jurisdictional value of the Court has changed (increased or decreased). It is further submitted that such a direction is required as amendment applications are not being accepted by the Registry.

Mr.Ghosh submits that the Ordinance is likely to be replaced by an Act in the Winter Session of the Parliament, which is already underway and the Act in the final form may clarify some of the ambiguities. It is, thus, prayed that both these matters should be taken up in the middle of January, 2016.

After hearing learned senior counsel for the petitioners and Mr.Sanjoy Ghose and Mr.Raj Shekhar Rao, counsel for the respondent/Delhi High Court, we are of the view that, prima facie, interpretation to Proviso to Section 7 of the Ordinance requires consideration. Accordingly, till the next date of hearing, cases arising out of Patents Act, 1970; Trademarks Act, 1999; Designs Act, 2000; Copyright Act, 2000; and The Geographical Indications of Goods (Registration And Protection) Act, 1999, shall not be transferred and in case application seeking amendment in the pecuniary value is filed, they shall be considered by the respective Single Judges in accordance with law.

List on 19.1.2016.

Let a copy of this order be given DASTI under the signature of Court Master to counsel for the parties.

 G.S.SISTANI, J

 SANGITA DHINGRA SEHGAL, J

 DECEMBER 03, 2015

msr /