Himachal Pradesh High Court
Reserved On: April vs Techfab (India) Industries Limited … on 6 May, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
2026:HHC:15075
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
OMP No. 343 of 2025 in
Civil Suit No. 23 of 2024
Reserved on: April 1, 2026
.
Decided on: May 6, 2026
Uploaded on: May 8, 2026
________________________________________________________
Geobrugg AG ........... Non-applicant/Plaintiff
Versus
Techfab (India) Industries Limited ..Applicant/Defendant
________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting? 1 Yes.
For the applicant/defendant Mr. L. Badri Narayanan and Mr. Vipul
Sharda, Advocates.
For the non-applicant/
plaintiff
rt Mr. Neeraj Gupta, Senior Advocate
with Ms. Shradha Karol, Mr. Rohit
Rangi, Ms. Suchita Kaintura, Mr.
Vaibhav Singh Chauhan and Ms.
Rupali Sharma, Advocates. .
________________________________________________________
Sandeep Sharma, Judge
OMP No. 343 of 2026
Through instant application filed under Order I, rule 9, Order I,
rule 13 read with Order VII, rule 11 and further read with S.151 CPC,
prayer has been made on behalf of the applicant/defendant “Techfab
(India) Industries Limited (hereinafter, ‘defendant’) for rejection of plaint
on the ground that same is vexatious, illusory, meritless, not disclosing
any cause of action. It is averred in the application that the averments
contained in the plaint as well as documents annexed therewith clearly
reveal that the non-applicant/plaintiff “M/s Geogrugg AG (hereinafter,
‘plaintiff’) has miserably failed to establish that there is any cause of
1
Whether the reporters of the local papers may be allowed to see the judgment?
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action, on the basis of which commercial suit i.e. COMS No.23 of 2024,
could be filed in this Court. Suit filed by the plaintiff has been sought to
be dismissed on the grounds that the plaintiff, before filing the suit has
.
failed to exhaust remedy of pre-institution mediation as provided under
S.12(A) of the Commercial Courts Act, 2015 (hereinafter, ‘Act 2015’). It
is also averred in the application that suit of the plaintiff does not
demonstrate/contemplate any urgency, as such, it was mandatory for
of
the plaintiff to comply with provisions of S.12(A) of the Act 2015. While
referring to the documents filed with the suit, particularly the invoices
(Marked as Annexure P-14 by the plaintiff), it has been further
rt
submitted on behalf of the defendant that the plaintiff had become
aware of the defendant’s impugned product, as early as in May, 2024
based on the invoices, but yet it failed to file suit promptly nor
attempted to resolve the issue through pre-institution mediation. It has
been averred in the application that the plaintiff failed to issue any
‘cease and desist’ notice upon the defendant even after having gained
knowledge of alleged infringement of impugned product as early as in
May, 2024. It is further averred in the application that the cause of
action, on the basis of which suit has been instituted, arises due to the
sale of the allegedly infringing impugned product to the third party,
which was consequently obtained by the plaintiff but such third party,
which otherwise is a necessary party, has not been made party in the
suit. Non-impleadment of third party to the suit as defendant, is
improper and reflects a malafide intent to institute a vexatious litigation
with the sole interest to stifle the business interests of the defendant. In
addition to this, defendant has also disputed plaintiff’s testing of
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impugned product to establish infringement, as samples of allegedly
infringing impugned product, which were eventually tested by the
plaintiff, were not sourced from the defendant, but through third party
.
i.e. Urbtech Engineering Construction Private Limited (hereinafter,
‘Urbtech’), which otherwise has not been made a party-defendant.
2. It is further stated in the application that there is nothing in the
plaint suggestive of the fact that impugned product obtained from third
of
party is manufactured by the defendant, hence, in the absence of any
evidence led by the plaintiff to show that the allegedly infringing product
originated from the defendant, the suit is not maintainable.
rt
3. It is further claimed in the application at hand that suit of the
plaintiff is not in proper form and format as required under the Act,
2015. Though, in terms of the Act, plaintiff, while filing documents with
the plaint has to mandatorily specify whether the documents in the
power, possession, control or custody of plaintiff are originals, office
copies or photocopies and the list shall also set out in brief, details of
parties to each document, mode of execution, issuance or receipt and
line of custody of each document. It is further averred that such
mandatory requirement has not been adhered to by the plaintiff, which
has not provided information regarding execution of documents,
whether the documents exist in original or copy form.
4. Pursuant to notices issued in the instant proceedings, plaintiff
has filed a detailed reply to the application, specifically stating therein
that defendant’s application under Order I, rule 13, Order VII, rule 11
CPC, seeking rejection of the plaint is not maintainable, for the reason
that same does not disclose the grounds, as are otherwise required to
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be taken/raised in terms of provisions contained under Order VII, rule
11 CPC. It is further submitted in the reply that mis-joinder/non-joinder
under Order I, rule 9 CPC and Order I, rule 13 CPC, is not a ground for
.
rejection of plaint under Order VII, rule 11 CPC, thus, reliance upon
aforesaid provisions of law for rejection of plaint is wholly misplaced
and unfounded. While submitting that Urbtech is not a necessary party,
it has been further averred in the reply that no relief is sought against
of
said party coupled with the fact that plaintiff being dominus litis is within
its right to chose a party against whom, relief is sought. While relying
upon S.48 of the Patents Act, which confers a right upon a patentee to
rt
prevent third parties from unauthorized making, using, offering for sale,
selling, or importing patented products or process, it has been averred
in the reply that defendant has committed infringement of plaintiff’s
right, who is using the technology covered by suit patents and
manufacturing and selling the impugned product. While stating that in
view of limited and ancillary role of third party, the plaintiff, being
dominus litis has not deemed it necessary to implead the third party in
the present suit, since ‘necessary party’ is a party, whose presence is
indispensible and without whom no effective order can be passed by
this Court.
5. While negating the plea set up at the behest of the defendant
that plaint deserves to be rejected on the ground of failure on the part
of the plaintiff to resort to pre-institution mediation, it has been averred
in the reply that pre-institution mediation is not mandatory in
proceedings, which contemplate an urgent interim relief against the
defendant, rather, same is necessary in a suit which does not
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contemplate any urgent relief. It is submitted by the plaintiff that it has
made out a prima facie case of patent infringement. disclosing
infringement by the defendant and balance of convenience also lies in
.
favour of the plaintiff, for grant of interim injunction.
6. It is further averred in the reply that plaintiff will suffer irreparable
loss and harm if defendant is not immediately restrained. While making
specific mention of paragraphs 41 to 52 of plaint, it has been stated in
of
the application that the suit contemplates an urgent interim relief,
hence, plaintiff is not under any obligation to resort to pre-institution
mediation. While making reference to injunction application under
rt
Order XXXIX, rules 1 and 2 CPC, it has been further stated that there
is continuous infringement of impugned product by the defendant and,
in case, defendant is not immediately restrained by way of interim
injunction, plaintiff will not only lose out on substantial market share
and sale on account of defendant’s acts of unfair competition by
misappropriating plaintiff’s technology but is also likely to lose the
reputation and goodwill.
7. While denying the claim set up by the defendant that no cause
of action has been made out against the defendant, it has been
submitted by the plaintiff that purpose of expert evidence is to
demonstrate that impugned product maps on to the claims of the suit
patents and by performing relevant tests and presenting visual and
other findings, the plaintiff’s expert has clearly established the
infringement through her affidavit. It is not the aim of the expert affidavit
to demonstrate or comment on the source of the impugned product. It
is further averred in the reply by the plaintiff that source of tested
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products unequivocally establishes that the same are being
manufactured and sold by defendant and mere denial of same on
flimsy grounds does not advance the case of the defendant, in any
.
manner.
8. While referring to the application made at the behest of the
defendant, it is averred in the reply that defendant has neither stated
that it is not in the business of manufacturing and selling the impugned
of
product nor has challenged the veracity of copy of invoice of the
impugned product thus, by raising such a frivolous and baseless
objection, the defendant is trying to waste precious judicial time by
rt
deviating from the main issue. It is submitted by the plaintiff in the
reply that the plea attempted to be set up that impugned products are
not authentic, is wholly untenable and deserves outright rejection.
While denying the claim of the defendant that this court does not have
jurisdiction, it is further submitted on behalf of the plaintiff that anyone
can order impugned product from Indiamart website in Himachal
Pradesh, however, there was no reason for plaintiff to procure product
from IndiaMart since plaintiff has already an invoice issued by the
defendant for sale of impugned product in Himachal Pradesh. While
reiterating that third party is merely a distributor of impugned product
and not a necessary party, it is averred that plaintiff could have
obtained sample from IndiaMart website thereby enabling plaintiff to
invoke jurisdiction of this Court. While stating that contents of para-27
and 28 of application are false and baseless, it has been stated that
instant application seeking rejection of plaint, has been filed on multiple
unfounded grounds, which are not even maintainable, rather
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application deliberately attempts to misuse judicial process, thereby
causing unnecessary delay and diverting the attention of this court from
the substantive issues in the matter.
.
9. While responding to the averments contained in the application
regarding violation of rule-18 Himachal Pradesh High Court Intellectual
Property Rules, 2022, it is averred by the plaintiff that said rule does
not make it mandatory for a party to serve a Litigation Hold Notice to a
of
party before initiating any proceedings and it is on the discretion of the
party to initiate litigation proceedings or serve a Litigation Hold Notice
and thus present suit not barred by provisions of rule 18 of Rules ibid.
rt
10. I have heard the parties and gone through record.
11. Before ascertaining the correctness and genuineness of rival
submissions made by learned counsel for the parties, it would be apt to
take note of the provisions of Order VII, rule 7 CPC, which read as
under:
11. Rejection of plaint.- The plaint shall be rejected in the following
cases:–
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on
being required by the court to correct the valuation within atime to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is
written upon paper insufficiently stamped, and the plaintiff, on
being required by the court to supply the requisite stamp paper
within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to
be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with the provision of Rule 9.
Provided that the time fixed by the court for the correction of the
valuation or supplying of the requisite stamp papers shall not be
extended unless the court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an exceptional nature from
correcting the valuation or supplying the requisite stamp papers, as
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the case may be within the time fixed by the court and that refusal to
extend such time would cause grave injustice to the plaintiff.
12. Bare perusal of aforesaid provision of law, if read in its entirety,
clearly reveals that the plaint can be rejected, if it does not disclose
.
cause of action or suit is barred in terms of rule 11(d). Most importantly,
where suit appears from statement of plaint to be barred by any law,
court while exercising power under Order VII, rule 11 CPC can reject
the plaint. Since the power conferred on the court to terminate civil
of
action at the threshold is drastic, the conditions enumerated under
Order 7 Rule 11 CPC to the exercise of power of rejection of plaint
rt
have to be strictly adhered to. While considering the prayer, if any,
made under aforesaid provision of law, court is under obligation to
determine whether the plaint discloses cause of action, on scrutiny of
averments contained in the plaint read in conjunction with documents
relied upon. If the Court, after scrutiny of averments contained in the
plaint and documents annexed therewith arrives at a conclusion that no
cause of action exists in favour of the plaintiff, it may proceed to reject
the plaint.
13. Similarly, if court is convinced that the suit is barred by any law,
it may not permit the plaintiff to unnecessarily protract the proceedings
in suit rather, in that situation, it may put an end to any sham litigation,
so that judicial time is not wasted.
14. Since the plaintiff, in terms of the provisions of Order VII, rule 14
CPC is entitled to place on record documents alongwith the plaint,
court, while considering the prayer made under Order VII, rule 11 CPC,
can also take into consideration the documents annexed with the
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plaint, to ascertain, whether cause of action exists in favour of the
plaintiff or not?
15. Besides ascertaining the correctness of the averments
.
contained in the plaint, court would also determine, whether a
assertions made in the plaint are contradictory to settled law or judicial
dicta and if it arrives at a conclusion that the assertions made in the
plaint are contrary to settled law or suit, in any eventuality is bound to
of
fail on account of judicial pronouncements, it can reject the plaint at the
threshold. Plea taken by the defendant in the written statement and
application for rejection of the plaint on merit, would not be relevant
rt
and cannot be taken into consideration by court, while considering
application under Order VII, rule 11 CPC.
16. At this stage, it would be apt to place reliance upon judgment
rendered by Hon’ble Supreme Court of India in Dahiben v. Arvindbhai
Kalyanji Bhanushali (Gajra) (2020) 7 SCC 366, wherein, it has been
held as under:
“23. We have heard the learned Counsel for the parties, perused the
plaint and documents filed therewith, as also the written submissions filed
on behalf of the parties.
23.1 We will first briefly touch upon the law applicable for deciding an
application under Order VII Rule 11 CPC, which reads as under:
“11. Rejection of plaint.- The plaint shall be rejected in the
following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed in undervalued, and the
plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails to do
so;
(c) where the relief claimed is properly valued but the
plaint is written upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the::: Downloaded on – 09/05/2026 10:56:19 :::CIS
10 2026:HHC:15075requisite stamp-paper within a time to be fixed by the
Court, fails to do so;
(d) where the suit appears from the statement in the plaint
to be barred by any law;
.
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of
rule 9Provided that the time fixed by the Court for the correction
of the valuation or supplying of the requisite stamp-paper
shall not be extended unless the Court, for reasons to beof
recorded, is satisfied that the plaintiff was prevent by any
cause of exceptional nature for correction the valuation or
supplying the requisite stamp-paper, as the case may be,
rt
within the time fixed by the Court and that refusal to
extend such time would cause grave injustice to theplaintiff.” (emphasis supplied)
23.2 The remedy under Order VII Rule 11 is an
independent and special remedy, wherein the Court isempowered to summarily dismiss a suit at the threshold,
without proceeding to record evidence, and conducting a
trial, on the basis of the evidence adduced, if it is satisfiedthat the action should be terminated on any of the grounds
contained in this provision.
23.3 The underlying object of Order VII Rule 11 (a) is
that if in a suit, no cause of action is disclosed, or the suit
is barred by limitation under Rule 11 (d), the Court would
not permit the plaintiff to unnecessarily protract the
proceedings in the suit. In such a case, it would be
necessary to put an end to the sham litigation, so that
further judicial time is not wasted.
23.4 In Azhar Hussain v. Rajiv Gandhi this Court held
that the whole purpose of conferment of powers under this
provision is to ensure that a litigation which is
meaningless, and bound to prove abortive, should not be
11986 Supp. SCC 315 Followed in Maharaj Shri
Manvendrasinhji Jadeja v. Rajmata Vijaykunverba w/o
Late Maharaja Mahedrasinhji, (1998) 2 GLH 823
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permitted to waste judicial time of the court, in the
following words :
“12. …The whole purpose of conferment of such power is to
ensure that a litigation which is meaningless, and bound to prove
abortive should not be permitted to occupy the time of the Court,
.
and exercise the mind of the respondent. The sword of Damocles
need not be kept hanging over his head unnecessarily without
point or purpose. Even if an ordinary civil litigation, the Court
readily exercises the power to reject a plaint, if it does not
disclose any cause of action.”
23.5 The power conferred on the court to terminate a civil action is,
however, a drastic one, and the conditions enumerated in Order VII Rule
11 are required to be strictly adhered to.
of
23.6 Under Order VII Rule 11, a duty is cast on the Court to determine
whether the plaint discloses a cause of action by scrutinizing the
averments in the plaint2, read in conjunction with the documents relied
23.7
rt
upon, or whether the suit is barred by any law.
Order VII Rule 14(1) provides for production of documents, on
which the plaintiff places reliance in his suit, which reads as under :
“Order 7 Rule 14: Production of document on which plaintiff sues
or relies.-
(1)Where a plaintiff sues upon a document or relies upon
document in his possession or power in support of his claim, he
shall enter such documents in a list, and shall produce it in Court
when the plaint is presented by him and shall, at 2 Liverpool &
London S.P. & I Assn. Ltd. v. M.V. Sea Success I & Anr., (2004) 9
SCC 512 the same time deliver the document and a copy thereof,to be filed with the plaint.
(2)Where any such document is not in the possession or power of
the plaintiff, he shall, wherever possible, state in whose
possession or power it is.
(3)A document which ought to be produced in Court by the
plaintiff when the plaint is presented, or to be entered in the list to
be added or annexed to the plaint but is not produced or entered
accordingly, shall not, without the leave of the Court, be received
in evidence on his behalf at the hearing of the suit.
(4)Nothing in this rule shall apply to document produced for the
cross examination of the plaintiff’s witnesses, or, handed over to a
witness merely to refresh his memory.” (emphasis supplied)23.8 Having regard to Order VII Rule 14 CPC, the documents filed
alongwith the plaint, are required to be taken into consideration for
deciding the application under Order VII Rule 11 (a). When a document
referred to in the plaint, forms the basis of the plaint, it should be treated
as a part of the plaint.
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23.9 In exercise of power under this provision, the Court would
determine if the assertions made in the plaint are contrary to statutory
law, or judicial dicta, for deciding whether a case for rejecting the plaint at
the threshold is made out.
.
23.10 At this stage, the pleas taken by the defendant in the written
statement and application for rejection of the plaint on the merits, would
be irrelevant, and cannot be adverted to, or taken into consideration.
23.11 The test for exercising the power under Order VII Rule 11 is that if
the averments made in the plaint are taken in entirety, in conjunction with
the documents relied upon, would the same result in a decree being
passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd.
of
v. M.V.Sea Success I & Anr., which reads as :
“139. Whether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does not
must be found out from reading the plaint itself. For the said
rt
purpose, the averments made in the plaint in their entirety must
be held to be correct. The test is as to whether if the averments
made in the plaint are taken to be correct in their entirety, adecree would be passed.”
23.12 In Hardesh Ores (P.) Ltd. v. Hede & Co.5 the Court further
held that it is not permissible to cull out a sentence or a passage, and to
read it in isolation. It is the substance, and not merely the form, which has
to be looked into. The plaint has to be construed as it stands, without
addition or subtraction of words. If the allegations in the plaint prima facie
show a cause of action, the court cannot embark upon an enquiry
whether the allegations are true in fact.6 12.8 If on a meaningful reading
of the plaint, it is found that the suit is manifestly vexatious and without
any merit, and does not disclose a right to sue, the court would be
justified in exercising the power under Order VII Rule 11 CPC. 12.9 The
power under Order VII Rule 11 CPC may be exercised by the Court at
any stage of the suit, either before registering the plaint, or after issuing
summons to the defendant, or before conclusion of the trial, as held by
this Court in the judgment of Saleem Bhai v. State of Maharashtra.7
The plea that once issues are framed, the matter must necessarily go to
trial was repelled by this Court in Azhar Hussain (supra).
23.15 The provision of Order VII Rule 11 is mandatory in nature. It
states that the plaint “shall” be rejected if any of the grounds specified in
clause (a) to (e) are made out. If the Court finds that the plaint does not
disclose a cause of action, or that the suit is barred by any law, the Court
has no option, but to reject the plaint.”
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17. If the aforesaid judgment is read in its entirety, it clearly reveals
that provisions contained under Order VII, rule 11 CPC are mandatory
in nature and in case court is convinced that the plaint does not
.
disclose any cause of action or suit is barred by law, it can proceed to
reject the plaint. Apart from above, if the court is convinced that the suit
is manifestly vexatious and without any merit and it does not disclose
right to sue, it may not permit the plaintiff to continue the same.
of
18. Reliance is also placed upon judgment passed by Hon’ble
Supreme Court of India in Ramisetty Ventakanna & Anr. v. Nasyam
Jamal Saheb & Ors, Civil Appeal No. 27170/2023, decided on
rt
28.4.2023, wherein, it came to be ruled that if the plaint is found to be
manifestly vexatious and meritless and does not disclose clear right to
sue, court can exercise power under Order VII, rule 11 CPC, for
rejection of the plaint. Most importantly, it also came to be held in the
afore judgment that, if the plaint discloses an illusory cause of action, is
barred by limitation or it is a case of clever drafting, court is duty bound
to nip it in the bud by examining a party under Order X CPC. Relevant
paragraphs of the aforesaid judgment read as under:
“5. We have heard learned counsel appearing on behalf of the
respective parties at length. We have also gone through the
averments made in the plaint. On going through the averments, it
appears that the suit is essentially based upon the premise that there
was an error in partition deed dated 11.03.1953 and in partition deed
survey number 706/A9 was wrongly mentioned. Therefore, it is the
case on behalf of the plaintiffs that Sarambee and other descendants
including the vendors of the appellants never had any right to effect
transactions in respect of the land in survey number 706/A9. However,
it is required to be noted that despite the above, very cleverly the
plaintiffs have not sought any relief with respect to partition deed::: Downloaded on – 09/05/2026 10:56:19 :::CIS
14 2026:HHC:15075dated 11.03.1953. Deliberately and purposely, the plaintiffs have not
prayed any relief with respect to partition deed dated 11.03.1953
though it is the case on behalf of the plaintiffs that there was an error
in partition deed dated 11.03.1953. It is to be noted that pursuant to.
the partition deed dated 11.03.1953, after the demise of the original
land owner Nasyam Jamal Saheb, his five children namely, 1)
Nasyam Jafar Saheb; 2) Nasyam Dasthagiri Saheb; 3) NasyamIbrahim Saheb; 4) Sarambee; and 5) Jainabee got partitioned the
properties under a registered partition deed dated 11.03.1953. Under
the registered partition deed, predecessor in interest of plaintiffs, N.of
Ibrahim Saheb got 1 acre and predecessor in interest of vendors of
the appellants Sarambee got 1 acre 16 cents. All the parties to the
registered partition deed acted upon the said partition deed. That
thereafter, further transaction took place and Sarambee executed a
rt
registered gift deed dated 24.01.1968 in favour of her eldest daughter
Kareembee – mother of the vendors of the appellants to an extent oflands measuring 58 cents. That thereafter, two sons of Kareebee who
became co-owner on the death of Kareembee executed the registered
sale deed dated 24.08.2010 in favour of the appellants in Survey No.706/A9 to an extent of land measuring 58 cents for a valid sale
consideration. Since 2010, the appellants are in possession of the
land purchased vide registered sale deed dated 24.08.2010. Withoutchallenging partition deed dated 11.03.1953 and even subsequent gift
deed dated 24.01.1968, the plaintiffs have instituted the present suitwith the aforesaid prayers which is nothing but a clever drafting to get
out of the limitation. If partition deed dated 11.03.1953 was to bechallenged which as such, the plaintiffs are attempting to do virtually,
the suit would be hopelessly barred by limitation having being
instituted after lapse of 61 years from the partition deed.
5.1 In the case of T. Arivandandam (supra) in paragraph 5 while
considering the provision of Order VII Rule XI, this Court has observed
as under: –
“5. We have not the slightest hesitation in condemning the
petitioner for the gross abuse of the process of the court
repeatedly and unrepentantly resorted to. From the statement
of the facts found in the judgment of the High Court, it is
perfectly plain that the suit now pending before the First
Munsif’s Court, Bangalore, is a flagrant misuse of the mercies
of the law in receiving plaints. The learned Munsif must
remember that if on a meaningful — not formal — reading of::: Downloaded on – 09/05/2026 10:56:19 :::CIS
15 2026:HHC:15075the plaint it is manifestly vexatious, and meritless, in the sense
of not disclosing a clear right to sue, he should exercise his
power under Order 7 Rule 11 CPC taking care to see that the
ground mentioned therein is fulfilled. And, if clever drafting has
created the illusion of a cause of action, nip it in the bud at the
first hearing by examining the party searchingly under Order.
10 CPC. An activist Judge is the answer to irresponsible law
suits.”
5.2 In the case of Sopan Sukhdeo Sable Vs. Charity Commr.,
(2004) 3 SCC 137 in paras 11 and 12, this Court has observed and
held as under:
“11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd.
v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it wasof
held that the basic question to be decided while dealing with
an application filed under Order 7 Rule 11 of the Code is
whether a real cause of action has been set out in the plaint or
something purely illusory has been stated with a view to get
out of Order 7 Rule 11 of the Code.
rt
12. The trial court must remember that if on a meaningful and
not formal reading of the plaint it is manifestly vexatious and
meritless in the sense of not disclosing a clear right to sue, itshould exercise the power under Order 7 Rule 11 of the Code
taking care to see that the ground mentioned therein is fulfilled.
If clever drafting has created the illusion of a cause of action, it
has to be nipped in the bud at the first hearing by examining
the party searchingly under Order 10 of the Code. (See T.Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467].)”
5.3 In the case of Madanuri Sri Rama Chandra Murthy Vs. Syed
Jalal, (2017) 13 SCC 174, this Court observed and held as under:
“7. The plaint can be rejected under Order 7 Rule 11 if
conditions enumerated in the said provision are fulfilled. It isneedless to observe that the power under Order 7 Rule 11
CPC can be exercised by the court at any stage of the suit.
The relevant facts which need to be looked into for decidingthe application are the averments of the plaint only. If on an
entire and meaningful reading of the plaint, it is found that the
suit is manifestly vexatious and meritless in the sense of not
disclosing any right to sue, the court should exercise power
under Order 7 Rule 11 CPC. Since the power conferred on the
court to terminate civil action at the threshold is drastic, the
conditions enumerated under Order 7 Rule 11 CPC to the
exercise of power of rejection of plaint have to be strictly
adhered to. The averments of the plaint have to be read as a
whole to find out whether the averments disclose a cause of
action or whether the suit is barred by any law. It is needless to
observe that the question as to whether the suit is barred by
any law, would always depend upon the facts and
circumstances of each case. The averments in the written
statement as well as the contentions of the defendant are
wholly immaterial while considering the prayer of the defendant
for rejection of the plaint. Even when the allegations made in
the plaint are taken to be correct as a whole on their face::: Downloaded on – 09/05/2026 10:56:19 :::CIS
16 2026:HHC:15075value, if they show that the suit is barred by any law, or do not
disclose cause of action, the application for rejection of plaint
can be entertained and the power under Order 7 Rule 11 CPC
can be exercised. If clever drafting of the plaint has created the
illusion of a cause of action, the court will nip it in the bud at
the earliest so that bogus litigation will end at the earlier stage.”
.
5.4 In the case of Ram Singh Vs. Gram Panchayat Mehal Kalan,
(1986) 4 SCC 364, this Court observed and held that when the suit is
barred by any law, the plaintiff cannot be allowed to circumvent that
provision by means of clever drafting so as to avoid mention of those
circumstances, by which the suit is barred by law of limitation. Similar
view has been expressed by this Court in the case of Raj Narain Sarin
of
(supra).
6. Applying the law laid down by this Court in the aforesaid
decisions on the applicability of Order VII Rule XI to the facts of the
rt
case on hand, we are of the opinion that the plaint ought to have been
rejected in exercise of powers under Order VII Rule XI(a) and (d) of
CPC being vexatious, illusory cause of action and barred by limitation.
By clever drafting and not asking any relief with respect to partition
deed dated 11.03.1953, the plaintiffs have tried to circumvent the
provision of limitation act and have tried to maintain the suit which is
nothing but abuse of process of court and the law.
7. Now, so far as the reliance placed on the decision of the Privy
Council referred to hereinabove and on the decision of this Court in
the case of Subhaga (supra) are concerned, there cannot be any
dispute with respect to the proposition of law laid down in the
aforesaid two decisions. However, the question is the suit being
barred by limitation and the illusory cause of action.
7.1 Now so far as the reliance placed upon the decision of this
Court in the case of Nusli Neville Wadia (supra) is concerned, again
there cannot be any dispute with respect to the proposition of law laid
down by this Court that while deciding the application under Order VII
Rule XI, mainly the averments in the plaint only are required to be
considered and not the averments in the written statement. However,
on considering the averments in the plaint as they are, we are of the
opinion that the plaint is ought to have been rejected being vexatious,
illusory cause of action and barred by limitation and it is a clear case
of clever drafting.”
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19. It is quite evident from aforesaid exposition of law laid down by
Hon’ble Apex Court as well as provisions contained under Order VII,
rule 11 CPC, that court can reject a plaint on following grounds:
.
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff,
on being required by the Court to correct the valuationwithin a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint
of
is returned upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the
Court, fails to do so;
rt
(d) where the suit appears from the statement in the plaint to
be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of
rule 9.
20. As per judgment passed by Hon’ble Apex Court, while
adjudicating application under Order VII, rule 11, a duty is cast upon a
court to determine whether the plaint discloses a cause of action, by
scrutinizing averments contained in the plaint, read in conjunction with
documents relied upon, or whether suit is barred by any law, meaning
thereby at the time of considering application under Order VII, rule 11
CPC, only contents of plaint as well as documents relied upon can be
taken into consideration but certainly, in no eventuality, averments
contained in the written statement or documents relied upon by the
defendant can be taken into consideration. The test is as to whether if
the averments made in the plaint are taken to be correct in their
entirety, a decree would be passed. Besides above, in exercise of
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18 2026:HHC:15075power under this provision, the court would determine if the assertions
made in the plaint are contrary to statutory law, or judicial dicta, for
deciding whether a case for rejecting the plaint at the threshold is made
.
out.
21. Plaintiff Geobrugg AG (hereinafter, ‘Geogrugg’) is owner of
Indian Patent Nos. 448244 and 454374 (hereinafter referred to as,
‘IN’244″ and ‘IN’374’, respectively and ‘suit patents’, collectively). The
of
suit patents are related to high-tensile steel wire netting/ mesh used for
protection against rockfall, landslides, debris flows, avalanches etc..
The plaintiff is marketing and selling wire mesh under its registered
rt
trade name “TECCO’ in India, which is covered by suit patents. The
defendant-Techfab (India) Industries Limited is manufacturing,
marketing and selling wire mesh which allegedly infringes the plaintiff’s
suit patents without any permission/ licence from the plaintiff.
22. Plaintiff is a Swiss company and its headquarters are located in
Romanshorn, Switzerland. The plaintiff is an independent company,
within the BRUGG Group and is present in over 50 countries. Plaintiff
claims to be a world leader in the design and fabrication of protection
systems using high-tensile steel wire mesh and developing &
manufacturing protection solutions since 1951. It is averred by plaintiff
that these protection systems protect against natural hazards such as
rock fall, landslides, debris flows, avalanches or coastal erosion.
Plaintiff has a fully owned Indian subsidiary named “Geobrugg India
Private Limited, having its registered office at Unit No. 959 & 959A,
JMD Mega Polis Sohna Road, Sector 48, Gurgaon-122018. Plaintiff
has a manufacturing facility at Geobrugg India Private Limited, Outer
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19 2026:HHC:15075
Ring Road, Opposite to Busur Girls High School, Lalkhatanga, Ranchi.
Plaintiff claims itself to be the first company to supply and install an
ETA (European Technical Approval) approved rockfall barrier in India.
.
23. Defendant is stated to be an Indian public company engaged in
the business of manufacturing, marketing and selling inter-alia the wire
mesh, which is used for protection against rock fall, landslides, debris
flows, avalanches etc.
of
24. As per plaintiff, to protect its rights in innovations made during
development of TECCO wire mesh, it has obtained a number of
patents worldwide including the suit patents.
rt
25. IN’374 patent concerns a wire mesh made of high-tensile
strength steel wire, which can be used for protection against rock fall,
landslides, debris flows, avalanches etc. In a typical wire mesh there
are plurality of helix, which are braided with each other. According to
the invention claimed in IN’374 patent, wire from which helix is made,
torsion-free in itself along a contour of leg(s) of the helix. The wire
mesh made according to the invention of IN’374 patent has high tensile
strength and high load bearing capacity.
26. IN’244 patent concerns a wire mesh, which can be used for
protection against rockfall, landslides, debris flows, avalanches etc. A
wire mesh made of high-tensile strength steel wire gives the wire mesh
a high resistance to wire breaks in the tensile direction, but is
vulnerable to bending since typically, high-tensile strength steel is
brittle compared to normal grade steel, when being bent, especially
with small bending radii.
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27. By virtue of aforesaid suit, plaintiff has exclusive right to prevent
third parties, who do not have its consent, from the act of making,
using, offering for sale, selling or importing for those purposes, the
.
invention claimed in the patent. The suit patents are valid and
enforceable for a term of 20 years from January 16, 2018 (international
filing date) until January 16, 2038 and the plaintiff is entitled to claim
damages from the date of publication of the applications of suit patents,
of
which is September 6, 2019 in case of IN’244 and July 17, 2019 in
case of IN’374.
28. Somewhere in May 2024, plaintiff became aware that the
rt
defendant is selling wire mesh which is similar to plaintiff’s TECCO wire
mesh (hereinafter, ‘impugned product’), as such, its team obtained
sample of wire mesh being sold by the defendant under trade name
“High Tensile Steel Rhomboidal Wire mesh” to a third party i.e. Urbtech
in Kullu, Himachal Pradesh.
29. On the basis of testing and analysis, it transpired that wire mesh
of defendant has all the features of at least claim 1 of IN’374 patent
and also claim 1 of IN’244 patent, therefore, defendant’s product
infringes IN’244 as well as IN’374 patents of plaintiff. To substantiate
aforesaid claim, plaintiff has also filed an affidavit of technical expert
Ms. Susane Feurer, confirming infringement of suit patents. In the afore
background, suit for permanent injunction restraining defendant from
infringing patents owned by plaintiff and other consequential reliefs
under S.108 of Patents Act and Order 26 CPC has been filed by the
plaintiff, which is pending adjudication.
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30. Before afore suit could proceed further, instant application under
Order VII, rule 11 CPC has been filed at the behest of the defendant for
rejection of plaint, on the grounds as have been taken note of herein
.
above.
31. Precisely, the case of defendant, as came to be argued by Mr.
L. Badri Narayanan, duly assisted by Mr. Vipul Sharda is that since
plaintiff obtained impugned product in Himachal Pradesh from third
of
party i.e. Urbtech, therefore, only Urbtech which is the only party in the
State of Himachal Pradesh that has sold and/or used the impugned
goods in the State, can be sued here.
rt Learned counsel for the
defendant further argued that defendant has no relation with Urbtech
other than being customer of impugned product, therefore, since
Urbtech, which is a necessary party, has not been made party, as
such, suit is liable to be rejected for non-joinder of necessary party.
32. However, having carefully perused the provisions of Order VII,
rule 11 CPC, this court is persuaded to agree with Mr. Neeraj Gupta,
learned Senior Counsel duly assisted by Ms. Shradha Karol, Advocate
that non-joinder of parties cannot be a ground for rejection of plaint.
Moreover, having carefully perused provisions of Order I, rule 9 and
Order I, rule 13 CPC, it becomes clear that no suit shall be defeated by
reason of misjoinder or non-joinder of parties, and the court may deal
with the matter in controversy regarding the rights and interests of the
parties actually before it.
33. Though, objection of non-joinder of party can be taken at the
earliest possible opportunity before settlement of issues, unless ground
of objection is substantiated by reason and if no such objection is
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22 2026:HHC:15075
taken, shall be deemed to have been waived. Moreover, by placing on
record invoice of impugned product, plaintiff has attempted to prove
that Urbtech has bought impugned product from defendant, hence,
.
same is not necessary party rather defendant is the only necessary
party, which is manufacturing, marketing and selling the impugned
product throughout India.
34. At this stage, it would be apt to take note of judgment passed by
of
Hon’ble Apex Court in Prem Lala Nahata & Anr v. Chandi Prasad
Sikaria, (2007) 2 SCC 551, wherein it was held that Court cannot
reject plaint on ground of non-joinder of parties. Relevant paras of
rt
aforesaid judgment read as under:
“12. Thus, in a case where a plaint suffers from the defect of
misjoinder of parties or misjoinder of causes of action either in
terms of Order I Rule 1 and Order I Rule 3 on the one hand, orOrder II Rule 3 on the other, the Code itself indicates that the
perceived defect does not make the suit one barred by law orliable to rejection. This is clear from Rules 3A, 4 and 5 of Order I
of the Code, and this is emphasised by Rule 9 of Order I of theCode which provides that no suit shall be defeated by reason of
non- joinder or misjoinder of parties and the court may in eithercase deal with the matter in controversy so far as it regards the
rights and interests of the parties actually before it. This is
further emphasised by Rule 10 of Order I which enables the
court in appropriate circumstances to substitute or add any
person as a plaintiff in a suit. Order II deals with the framing of a
suit and Rule 3 provides that save as otherwise provided, a
plaintiff may unite in the same suit several causes of actions
against the same defendant and any plaintiffs having causes of
actions in which they are jointly interested against the same
defendant may unite such causes of action in the same suit.
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23 2026:HHC:15075
Rule 6 enables the Court to order separate trials even in a case
of misjoinder of causes of action in a plaint filed.
16. Order VII Rule 11 (d) speaks of the suit being “barred by
any law”. According to the Black’s Law Dictionary, bar means, a.
plea arresting a law suit or legal claim. It means as a verb, to
prevent by legal objection. According to Ramanatha Aiyar’s Law
Lexicon, ‘bar’ is that which obstructs entry or egress; to excludefrom consideration. It is therefore necessary to see whether a
suit bad for misjoinder of parties or of causes of action isof
excluded from consideration or is barred entry for adjudication.
As pointed out already, on the scheme of the Code, there is no
such prohibition or a prevention at the entry of a suit defective
for misjoinder of parties or of causes of action. The court is still
rt
competent to try and decide the suit, though the court may alsobe competent to tell the plaintiffs either to elect to proceed at the
instance of one of the plaintiffs or to proceed with one of the
causes of action. On the scheme of the Code of Civil Procedure,
it cannot therefore be held that a suit barred for misjoinder ofparties or of causes of action is barred by a law, here the Code.
This may be contrasted with the failure to comply with Section80 of the Code. In a case not covered by sub-section (2) of
Section 80, it is provided in sub-section (1) of Section 80 that“no suit shall be instituted”. This is therefore a bar to the
institution of the suit and that is why courts have taken the viewthat in a case where notice under Section 80 of the Code is
mandatory, if the averments in the plaint indicate the absence of
a notice, the plaint is liable to be rejected. For, in that case, the
entertaining of the suit would be barred by Section 80 of the
Code. The same would be the position when a suit hit by
Section 86 of the Code is filed without pleading the obtaining of
consent of the Central Government if the suit is not for rent from
a tenant. Not only are there no words of such import in Order I
or Order II but on the other hand, Rule 9 of Order I, Rules 1 and
3 of Order I, and Rules 3 and 6 of Order II clearly suggest that it::: Downloaded on – 09/05/2026 10:56:19 :::CIS
24 2026:HHC:15075is open to the court to proceed with the suit notwithstanding the
defect of misjoinder of parties or misjoinder of causes of action
and if the suit results in a decision, the same could not be set
aside in appeal, merely on that ground, in view of Section 99 of.
the Code, unless the conditions of Section 99 are satisfied.
Therefore, by no stretch of imagination, can a suit bad for
misjoinder of parties or misjoinder of causes of action be held tobe barred by any law within the meaning of Order VII Rule 11(d)
of the Code.
of
17. Thus, when one considers Order VII Rule 11 of the Code
with particular reference to Clause (d), it is difficult to say that a
suit which is bad for misjoinder of parties or misjoinder of causes
of action, is a suit barred by any law. A procedural objection to
rt
the impleading of parties or to the joinder of causes of action orthe frame of the suit, could be successfully urged only as a
procedural objection which may enable the Court either to
permit the continuance of the suit as it is or to direct the plaintiff
or plaintiffs to elect to proceed with a part of the suit or even totry the causes of action joined in the suit as separate suits.”
35. Mr. L. Badri Narayanan also argued that the plaint is barred by
law, since no pre-institution mediation has been exhausted which is
mandatory as per S12-A of the Act.
36. Though, S.12A of the Act provides pre-institution mediation but
same is not required if the suit contemplates an urgent relief. Since, in
the case at hand, an urgent relief has been contemplated, as
infringement of plaintiff’s patent right is continuous, plaintiff is seeking
an interim injunction.
37. Reliance is placed upon Novenco Building and Industry A/S
v. Xero Energy Engineering Solutions Private Ltd. & Anr., 2025
SCC OnLine SC 2278, relevant paragraphs whereof read as under:
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“ANALYSIS
21. Thus, the question whether a suit ‘contemplates any urgent
interim relief’ needs to be examined on the touchstone of the
aforementioned criteria. The issue which arises for consideration in.
this appeal is whether a suit alleging continuing infringement of
patent and design rights, accompanied by a prayer for interim
injunction, can be said to contemplate urgent relief within
the meaning of Section 12A of the Act, notwithstanding certain delay
in its institution.
22. The subject matter of the present action is continuing
infringement of intellectual property. Each act of manufacture, sale,
of
or offer for sale of the infringing product constitutes a fresh wrong
and recurring cause of action. It is well settled in law that mere delay
in bringing an action does not legalise an infringement and the same
rt
cannot defeat the right of the proprietor to seek injunctive relief
against the dishonest user5. The appellant has pleaded that Xero
Energy, its former distributor, has dishonestly appropriated its
proprietary designs and patents to manufacture and market identical
fans under deceptively similar name. The accompanying material
demonstrates that such infringing activity is continuing and causing
immediate and irreparable harm to the appellant’s business
reputation, goodwill and proprietary rights.
23. From the standpoint of the appellant, each day of continuing
infringement aggravates injury to its intellectual property and erodes
its market standing. The urgency, therefore, Midas Hygiene
Industries Private Ltd. & Anr. (supra) is inherent in the nature of the
wrong and does not lie in the age of the cause but in the persistence
of the peril. The court cannot be unmindful of the fact that intellectual
property disputes are not confined to the private realm. When
imitation masquerades as innovation, it sows confusion among
consumers, taints the market place and diminishes faith in the
sanctity of the trade. The public interest, therefore, becomes the
moral axis upon which the urgency turns. Therefore, the public
interest element, need to prevent confusion in the market and to
protect consumers from deception further imparts a colour of
immediacy to the reliefs sought.
24. The appellant’s prayer for injunction cannot be characterised as
mere camouflage to evade mediation. It is a real grievance founded
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on the continuing nature of infringement and irreparable prejudice
likely to be caused by the delay. The court must look beyond time lag
and evaluate the substance of the plea for interim protection. The
insistence of pre-institution mediation in a situation of ongoing
.
infringement, in effect, would render the plaintiff remediless allowing
the infringer to continue to profit under the protection of procedural
formality. Section 12A of the Act was not intended to achieve such
kind of anomalous result.
25. The learned Single Judge as well as the Division Bench of the
High Court erred in construing the test for urgent relief enumerated
of
in Section 12A of the Act, in as much as the courts have proceeded
to examine the entitlement of the appellant to urgent relief based on
the merits of the case rather than looking at the urgency as is evident
from the plaint and the documents annexed thereto from the
rt
standpoint of the plaintiff. The High Court has proceeded on the
premise that lapse of time between the appellant’s discovery of
infringement and filing of suit negated the element of urgency. Such
an approach, in our considered view, is contrary to the principles laid
down by the decisions of this Court. The High Court has also failed
to take into account that the present action is one of the continuous
infringement of intellectual property.
CONCLUSION
26. For the reasons stated above, we hold that (i) In actions alleging
continuing infringement of intellectual property rights, urgency must
be assessed in the context of the ongoing injury and the public
interest in preventing deception, (ii) Mere delay in institution of a suit
by itself, does not negate urgency when the infringement is
continuing.”
38. Though, in the application filed for rejection of plaint, no specific
averment has been made with regard to lack of territorial jurisdiction to
entertain the present suit, but during arguments, Mr. L. Badri
Narayanan, learned counsel for the defendant vehemently argued that
this Court does not have territorial jurisdiction to entertain the present
suit. He submitted that though lack of territorial jurisdiction is not a
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ground for rejection of plaint under Order VII, rule 11 CPC, but yet this
Court can look into the question of territorial jurisdiction, suo motu.
39. While referring to S.20 CPC and S.48 of Patents Act, Mr. L.
.
Badri Narayanan submitted that S.20 provides territorial jurisdiction to
the appropriate court if, either defendant resides in the territory or
carries on business or works for personal gains in the territory or whole
or part of the cause of action arises in the said territory. He submitted
of
that the defendant is neither a resident of State of Himachal Pradesh
nor has any establishment, distributor, wholesaler or agents in the
State of Himachal Pradesh for carrying on business, therefore, this
rt
Court has no territorial jurisdiction to entertain suit filed at the behest of
plaintiff. He further submitted that though by way of placing on record
invoice, an attempt has been made by plaintiff to assert territorial
jurisdiction of this Court, but since no sale or purchase of infringing
product ever took place within the territorial jurisdiction of this Court,
plaintiff’s case being baseless, deserves to be rejected. He submitted
that the Patents Act, regulates registration of patents in India and
provides for exclusive rights to the patent holders in India.
40. Mr. L. Badri Narayanan submitted that there is no dispute that
defendant is not making, using or importing said goods in the State of
Himachal Pradesh, hence this Court has no jurisdiction in the matter.
He submitted that in matters of contract, cause of action arises at
certain places but not everywhere. While referring to judgment passed
by Hon’ble Apex Court in A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies
(1989) 2 SCC 163, wherein S.20(c) CPC came to be interpreted in the
context of contracts, Mr. L. Badri Narayanan submitted that explanation
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III to S.7 of previous CPC Act of 1888 was a guiding factor. He
submitted that primary basis is that the defendant has infringed the
impugned patents by selling its impugned goods and plaintiff must
.
satisfy the court that some aspect of the above elements is present in
the State of Himachal Pradesh and mere presence of impugned goods
in the State is not sufficient. He further submitted that contract sale was
not made in State of Himachal Pradesh, rather money was paid in
of
Maharashtra and delivery of goods, which is impugned product in the
case at hand, was made in Uttarakhand. He submitted that contract
and money transfer took place outside Himachal Pradesh, hence, this
rt
Court has no jurisdiction. He submitted that contract of sale was
performed wholly in the State of Uttarakhand, when the goods were
delivered by the defendant to the common carrier in the State of
Uttarakhand.
41. While referring to S.19 read with S.23(2) and S.39 of Sale of
Goods Act, 1930, Mr. L. Badri Narayanan stated that title is transferred
when the goods are delivered to the common carrier by the seller. In
support of afore submission, Mr. L. Badri Narayanan placed reliance
upon Escorts JCB Lt. v. CCE, Delhi, (2003) 1 SCC 281, wherein
Hon’ble Apex Court, while relying upon S.39 held that ownership in the
goods gets transferred to the buyer at the time of delivery to the carrier
as per Sale of Goods Act. He submitted that factum of transit insurance
or arranging the transport for delivery to final destination does not
result in the ownership being retained by the seller during the transit
and the same being transferred to the buyer at the destination and
thus, transaction of sale is complete once the goods are delivered to
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29 2026:HHC:15075
the common carrier in Uttarakhand. However, delivery, if any, in
Himachal Pradesh to Urbtech would not confer territorial jurisdiction
upon this Court.
.
42. Mr. Neeraj Gupta, learned senior counsel for the plaintiff, while
responding to afore submissions made at the behest of defendant,
submitted that performance of contract sale of impugned goods was
not compete in Uttarakhand since as per S.41 of the Sale of Goods
of
Act, buyer is not deemed to have accepted the goods until and unless,
he has had a reasonable opportunity of examining them.
43. At this stage, it would be apt to take note of Ss.39 (1) and 41 of
rt
Sale of Goods Act, which read as under:
“39. Delivery to carrier or wharfinger. – (1) Where, in pursuance of a
contract of sale, the seller is authorized or required to send the goods
to the buyer, delivery of the goods to a carrier, whether named by thebuyer or not, for the purpose of transmission to the buyer , delivery of
the goods to a carrier, whether named by the buyer or not, for the
purpose of transmission to the buyer or delivery of the goods to awharfinger for safe custody, is prima facie deemed to be a delivery of
the goods to the buyer.
41. Buyer’s right of examining the goods. – (1) Where goods are
delivered to the buyer which he has not previously examined, he is notdeemed to have accepted them unless and until he has had a
reasonable opportunity of examining them for the purpose of
ascertaining whether they are in conformity with the contract”
44. Admittedly, in the case at hand, buyer had not examined
impugned product before delivery of goods and such fact is evident
from invoice itself wherein it is stated that, “all quality related of the
above products will only be entertained within 7 days from receipt of
material at the consignee location.” (P.188 of plaintiff’s documents).
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Hence, this court is persuaded to agree with Mr. Neeraj Gupta, learned
senior counsel appearing for the plaintiff that performance of contract
was complete after acceptance of impugned product by buyer in Kullu
.
and not in Uttarakhand, as alleged by the defendant, hence, it can be
said that cause of action arose in Himachal Pradesh and this Court has
territorial jurisdiction to try and entertain the present suit.
45. Reliance in this regard is placed upon a judgment passed by
of
Madras High Court in Sorabji Hormusha Joshi and Co. v. V.M.
Ismail and Ors. 1959 SCC OnLine Mad 239:AIR 1960 Mad 520,
wherein it has been held as under:
rt
“(32) A mere receipt of goods does not amount to acceptance andbefore the buyer can be called upon to accept the goods, he can claim
a reasonable opportunity of examining the goods. That opportunity is
to be given by the seller on request by the buyer. Whether the
opportunity offered by the seller for the examination of the goods wasreasonable would, like any other question of fact, depend on the
circumstances of each case. It would also depend on the terms of thecontract.
(33) The seller’s duty is to afford the buyer a reasonable
opportunity; it is up to the buyer to avail of that opportunity and if he
fails to avail of it or if he avails of it in an incomplete or perfunctory
manner the seller cannot be held liable: (1919) 1 KB 486; Bragg v.
Villa Nova, (1923) 40 TLR 154. Peer Mohammad Rowther v.
Dalooram Jayanarayan, AIR 1919 Mad 728; Muthukrishna Reddiar
and Sons v. Madhavji Devichand and Co. Ltd., . The opportunity is to
be afforded only on request from the buyer. Where no such request is
made it may be presumed that the buyer has dispensed with this
requirement, i. e, has chosen to waive. Waiver may be implied from
other acts or conduct of the buyer as well; National Traders v.
Hindustan Soap Works, .
(34) The inspection and rejection must be without practicable delay.
The trial Court has rightly relied on Mithan Lal v. Suraj Parshad, AIR
1932 Lah 52 and Province of Madras v. Galia Kotwalla and Co., Ltd.,
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31 2026:HHC:15075
1945-2 Mad LJ 418: (AIR 1946 Mad 69, for the proposition that
avoidable and inordinate delay would disentitle the plaintiffs from
maintaining any action for damages.
(35) Prima facie the place and the time of examination are the time
.
and place of delivery: Perkins v. Bell, (1893) 1 QB 193; Nagar Dass v.
Vel Mohammed, AIR 1930 Bom 249; In re Andrew Yule and Co., AIR
1932 Cal 879. The general rule may, however, be replaced by the
circumstances of the particular contract: Saunt v. Belcher and
Gibbons Ltd., (1920) 26 Com Cas 115. The right of inspection in a c. i.
f., contract does not exist at the place or time of delivery. The buyer is
of
bound to make payment against the tender of goods; his right of
examining the goods and to reject them if they are not in conformity
with the contract, however, remains even after payment and is
exercised on actual delivery of goods: Polenghi Bros. v. Dried Milk
rt
Co., (1905) 92 LT 64; Ram Dayal Ram Narain v. Bhairo Bux, AIR
1924 Pat 240; Mahadev Ganga Prasad v. Gourishankar, AIR 1950
Orissa 42.
(36) The place of delivery is the proper place of inspection: Hilebutt
v. Hickson, (1872) 7 C. P. 438. But the circumstances of the case may
show that some other place is the appropriate place. Where the goods
to the knowledge of the seller are purchased by the buyer to deliver
for further destination and the nature of goods and the way in which
they are packed make it unreasonable to inspect immediately on
delivery, the right to reject will be extended to the later date: Van Den
Hurk v. Martons and Co. Ltd., (1920) 1 KB 850; Hardy and Co. v.
Hillerns and Fowler, (1923) 2 KB 490.
(37) Section 41 of the Act gives the buyer a right to inspection and
unless he has had an opportunity of exercising that right, he is not
deemed to have accepted the goods. In other words, he has the right
to reject them. Where the contract is for specific goods, the property in
which has passed to the buyer, the right of rejection is lost: S. 13(2).
The right to reject is also lost where the buyer has accepted the goods
and that acceptance may take place before or after the examination of
the goods. The right of examination is, therefore, closely connected
with the acceptance of the goods and the passing of property.
38. The parties may intend whether a right of examination is to be
treated as a condition precedent qualifying the buyer’s obligation
either to take title or to pay the price or a condition subsequent
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authorising the return of the goods and the recovery of the price, if title
to the goods has passed, or the price has been paid: see 3 Williston
and Sales, S. 471.
(39) If it is a condition precedent, the goods must be merchantable on
.
arrival at destination in order to conform to the contract and the risk of
deterioration and the loss would be wholly upon the seller. Where it is
treated as a condition subsequent, the risk of deterioration would rest
upon the buyer. His right of examination would be there, but it would
be only for the purpose of determining whether at the time the title
passed, that is to say, at the time the sale was made or at the time the
of
delivery was made to the carrier, the goods conformed to the contract
and were merchantable.
(40) Closely associated with this question is the distinction between
assent to delivery to be operative as a transfer of property and
rt
acceptance of goods after examination under S. 41. There may assent
so as to pass the property constantly with the examination goods later
on and rejection, if necessary.
“The defendant insists that the goods are not appropriated to a
contract with the assent of the buyer until the buyer has so manifestedhis approval of their quality as to preclude him thereafter from giving
notice of rescission. In that view, the passage of title may be
indefinitely postponed and reasonable time within which a buyer isprivileged to return goods found to be defective will vary with many
circumstances, as, for instance, the nature of the defects, whetherpatent or concealed. We think assent to appropriation is something
more immediate and certain. It does not signify an acceptance sodefinitive and deliberate as to bar rescission for defect”. 3 Williston on
Sales, S. 482.
(41) It signifies the buyer’s willingness to take as his own the goods
appropriated by the seller, subject to rescission and return if defects
are afterwards discovered. The cases are many in which goods are
shipped by carriers who receive them for the buyers. An order for such
shipment is an assent that the goods be appropriated by the seller,
and title passes when they are delivered to the carrier ‘in a deliverable
state’: Ramdas v. Firm Laxmichand Kashiram, AIR 1955 NUC (Raj)
133.
(42) This does not mean that the buyer is helpless if the goods
when they reach their destination are found to be defective. His assent::: Downloaded on – 09/05/2026 10:56:19 :::CIS
33 2026:HHC:15075
to the appropriation of goods in a deliverable state is not assent to the
appropriation of any goods, though of a kind or a quality at variance
with the contract. On the other hand, his assent will stand, and may be
retracted, if the variance is pretended. There is no distinction in this
.
respect between delivery to the buyer through a carrier or other
intermediary and delivery to the buyer personally. The question in
each case is whether delivery is made in such circumstances as to
indicate assent to the appropriation by the seller.
(43) Delivery to be operative as a transfer of the property must be
assented to by the buyer: 3 Williston on Sales, S. 472. The seller may
of
not force the goods upon buyer unwilling to receive them. The buyer,
when delivery is tendered, may refuse to assent to it at all (taking of
course the risk of liability for damages), or may assent subject to the
condition that he be allowed to see the goods before delivery or
rt
appropriation shall be deemed to be complete.
(44) There is difference in other words, between inspection
following delivery, and inspection to determine whether delivery shall
be permitted. Until that determination is made, the transaction is in
fieri. Delivery remains inchoate while the buyer refuses to treat it as
perfected. Even taking the goods in, may be so qualified by notice or
agreement that possession will not operate as an expression of
assent.
(45) The buyer is entitled examine the goods to decide whether he
will become owner, and until the examination is completed or waived
he is under no obligation to accept the goods: 3 Williston on Sales, S.
472. The examination is waived, however, in so far as it is a condition
precedent to the transfer of the property, when there is an assent to
delivery without reservation or condition accompanying the receipt and
qualifying or postponing or neutralizing its effect: Henry Glass and Co.
v. Misroch, New York Court of Appeals, (1925) 239 N. Y. Rep 475″
46. Though, Mr. L. Badri Narayanan, learned counsel for the
defendant placed reliance upon judgments passed in Escorts JCB
Limited v. Commissioner of Central Excise, Delhi-II (2003) 1 SCC
281, Sasa Musa Sugar Works Pvt. Ltd. v. Chunilal Charoria AIR
1959 SC 923, M/s J.C. Entrprises (Regd.) v. Ranganatha
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34 2026:HHC:15075Enterprises and Auto Engineering Works v. Bansal Trading Co.
(2001) 10 SCC 630, however having carefully perused aforesaid
judgments, this court is persuaded to agree with Mr. Neeraj Gupta,
.
learned senior counsel for the plaintiff that same have no bearing in the
present case.
47. In Escorts JCB Limited supra, parties agreed that sale was ex-
works and it was agreed that delivery of goods would be complete
of
once goods would be delivered to the carrier. Delivery of goods to the
buyer was deemed when goods were delivered, by virtue of agreement
between the parties. S.19 of Sale goods Act, 1930, permits parties to
rt
agree as to the time at which the property in the goods is to pass to the
buyer. Section 19 of said Act reads as under:
“Section 19: Property passes when intended to pass.
19. (1) Where there is a contract for the sale of specific or ascertained
goods the property in them is transferred to the buyer at such time as
the parties to the contract intend it to he transferred.
(2) For the purpose of ascertaining the intention of the parties regard
shall be had to the terms of the contract, the conduct of the partiesand the circumstances of the case.
(3) Unless a different intention appears, the rules contained in
sections 20 to 24 are rules for ascertaining the intention of the partiesas to the time at which the property in the goods is to pass to the
buyer.”
48. In case M/s J.C. Enterprises and Auto Engineering Works,
supra, agreement between the parties were oral and presumption
under S.39 of the Sale of Goods Act, could not be rebutted. Moreover,
carful perusal of aforesaid judgments reveals that S.41 of said Act was
not argued or considered, whereas, having carefully perused S.41 of
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35 2026:HHC:15075
the Act ibid, this Court is persuaded to agree with Mr. Neeraj Gupta,
learned senior counsel for the plaintiff that same is applicable in the
case at hand. Presumption under S.39 would not apply.
.
49. Besides above, it has been specifically averred in the plaint that
defendant is also carrying on business within the territorial jurisdiction
of this Court through Indiamart website. While making aforesaid
averment, plaintiff has virtually placed reliance upon S.20(a) and 20(c)
of
CPC, for establishing jurisdiction of this Court (See Para 54 and 56 of
plaint)
50. To refute aforesaid claim set up by the plaintiff, Mr. L. Badri
rt
Narayanan, learned counsel for the defendant argued that Indiamart is
not an interactive site, as no sale can be concluded there. However,
having carefully perused the judgment passed by Division Bench of
Delhi High Court in Shree Girirajji and Co. v. Gagan Pagrani,
Proprietor of Plastica Industries, 2024 SCC OnLine Del 2084, this
court is not persuaded to agree with Mr. L. Badri Narayanan.
51. In the aforesaid judgment, Division Bench of Delhi High Court
held that Indiamart Website is an interactive site. It is has been held as
under:
“9. The respondent alleges that the appellant also sells goods through
an interactive website – www.indiamart.com.
10. The learned Commercial Court had, prima facie, accepted the said
allegations and had issued an ad interim order dated 25.08.2023
restraining the appellant and other persons acting on its behalf from
using, directly or indirectly, the trademark “SUPER SHAKTI LENO”
and various formative trademarks, which are deceptively similar to the
respondent’s trademarks. Further, the learned Commercial Court also
appointed a Local Commissioner to, inter alia, conduct a search and
inspect the various premises of the appellant located in Indore, Ratlam
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36 2026:HHC:15075
and Shajapur. The said commission was executed and its report
indicates that goods bearing the trademark “SUPER SHAKTI LENO”
were found in the premises of the appellant in sufficient quantities.
11. The appellant had filed an application under Order XXXIX Rule 4
.
of the CPC seeking vacation of the ad interim order principally on the
ground that the learned Commercial Court did not have the jurisdiction
to entertain the suit. The said application was rejected by theimpugned order.
12. The appellant claims that it is not selling the goods bearing
the offending trademarks in NCT of Delhi or through the online marketof
place (www.indiamart.com), therefore, the learned Commercial Court
had no jurisdiction to entertain the suit. This is stoutly disputed by the
respondents.
13. It is material to note that before the learned Commercial Court, the
rt
appellant had conceded that it was selling leno bags through the
interactive web page on ‘www.indiamart.com’. It was admitted that ifan order to purchase these bags was placed by a customer in Delhi,
the appellant would service the said order and supply the goods. In
view of the above, the learned Commercial Court held that since, thesaid website is an interactive one that can be accessed from Delhi, the
learned Commercial Court would have the jurisdiction to entertain the
suit.
14. Undisputedly, if a person carries on his business through an
interactive site and, sells and markets its goods through such sites,
the courts exercising jurisdiction in respect of places where the goods
are made available would have the jurisdiction to entertain a suit forinfringement of the trademarks. Indisputably, customers in Delhi can
place orders and purchase goods online through the interactive
website. Thus, the courts in Delhi would have the jurisdiction to
entertain the suit for infringement of trademarks and passing off
(Reference: World Wrestling Entertainment, Inc. v. M/s. Reshma
Collection & Ors.: 2014 SCC OnLine Del 2031).
15. Having stated above, this Court also notes that there is a dispute
whether the goods sold through the interactive site bear the offending
trademarks. According to the appellant, it does not do so. It is also
material to note that in its written statement the appellant had denied
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37 2026:HHC:15075
websites like ‘www.indiamart.com’ to solicit customers in South Delhi,
areas which do not have any vegetable or fruit mandi. However, the
material placed on record does indicate that the appellant is registered
with Indiamart and its goods are being sold on the Indiamart website.
.
The appellant does not dispute that it sells goods through the online
market place, although the appellant disputes that the goods offered
through the website bear the offending trademarks. However, there is
no specific denial in the written statement to the effect that the
appellant is selling goods through the website but not those goods that
bear the impugned trademark as is contended before this Court. As
of
noted above, the appellant had conceded before the learned
Commercial Court that it was selling leno bags through the website of
Indiamart and orders placed by customers through the website would
be serviced by the appellant.”
rt
52. In case Sunil Niranjan Shah v. Vijay Bahadur 2025 SCC
OnLine Del 8644, it has been further reiterated that Indiamart website
is an interactive website. Relevant paragraphs of aforesaid judgment
read as under:
“ANALYSIS AND FINDINGS:
Cause of action within the territorial jurisdiction
6. It is submitted by the Defendant that no cause of action has
arisen within the territorial jurisdiction of this Court as neither of the
parties resides, works for gain, nor carries on business within Delhi.
The Defendant is operating only in Basti, Gorakhpur, Ambedkar
Nagar, Siddharth Nagar, Maharajganj, Gorakhpur and Kushi Nagar
districts in Uttar Pradesh and the Suit has been filed with a mala fide
intention to harass the Petitioners. CS(COMM) 669/2025 Page 16 of
21
7. However, a bare perusal of the Plaint would show that the
Plaintiff has sufficiently pleaded that the cause of action has arisen
within the jurisdiction of this Court by relying upon the screenshots
showing the use of the Impugned Marks by the Defendant, which is
deceptively similar to the Plaintiff’s Marks. The evidence relied upon
by the Plaintiff in the Plaint is sufficient to prima facie establish that the
Defendant is engaged in selling of the Infringing Products bearing the
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Impugned Trade Marks, which are deceptively similar to the Plaintiff’s
Marks, and are available to the customers within the jurisdiction of this
Court. Hence, there is clear cause of action that has arisen within the
jurisdiction of this Court.
.
8. As the Plaint has sufficiently shown that the Defendant is
present on interactive third party e-commerce platform, IndiaMart,
where the customers located within the jurisdiction of this Court can
buy and sell the products with the Impugned Marks, the same would
satisfy the test of having ‘purposefully availed’ of the jurisdiction of this
Court by making the goods available and targeting the customers
of
within the jurisdiction of this Court. Accordingly, this Court has the
territorial jurisdiction in view of the accessibility of the IndiaMart listing,
which is interactive in nature and because the Defendant has
purposefully availed itself of the jurisdiction of this Court.
rt
9. The decisions in Indian Performing Rights Society Ltd. (supra),
Banyan Tree Holding (supra) and M/s Kohinoor Seed Fields (supra)
does not help the case of the Defendant as the Defendant is carrying
on business through interactive e-commerce platform within the
jurisdiction of this Court and that the cause of action has arisen as the
Defendant is also offering to sell the products with Impugned Trade
Marks within the CS(COMM) 669/2025 Page 17 of 21 jurisdiction of
this Court, the objection with regard to the territorial jurisdiction as
raised by the Defendant is not maintainable.
10. It is trite law that while deciding the Application under Order VII
Rules 10 and 11 of CPC, the averments made in the Plaint are
presumed to be correct and the Application is decided on demurrer. In
Sonal Kanodia (supra), World Wrestling (supra), M/s Bhatia Industries
(supra) and LT Foods Limited (supra), it has been held that while
deciding on the issue of territorial jurisdiction, averments made in the
plaint are required to be considered as correct on a demurrer.
Considering the overall averments made in the Plaint and the prima
facie perusal of the documents filed along with the Plaint show that the
Plaintiff has made out a case for maintaining the Suit before this
Court”
53. Reliance has further been placed by plaintiff on judgments
passed by Delhi High in Marico Ltd. v. Mukesh Kumar and Ors. 2018
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39 2026:HHC:15075SCC OnLine Del 13412 and Shakthi Fashion and another v.
Burberry Limited 2022 SCC OnLine Del 1636.
54. Though, Mr. L. Badri Narayanan argued that plaintiff has not
.
shown any sale through Indiamart within the territorial jurisdiction of
this Court, however, this Court is not impressed with aforesaid
submission made at the behest of defendant, because, access to an
interactive website is sufficient to mean “carrying on business” within
of
the jurisdiction of this Court.
55. Reliance in this regard is placed upon a judgment passed by
Delhi High Court in Kohinoor Seed Fields India Pvt. Ltd. v Veda
rt
Seed Sciences Pvt. Ltd. 2025 SCC OnLine Del 8727, wherein, it hasbeen held as under:
“19.4.6 The learned Single Judge is, therefore, correct in his view that,
as per the law declared in Banyan Tree Holding, the mere existence ofan interactive website of the defendant, accessible within the territorial
jurisdiction of this Court, would not be sufficient for the suit to bemaintainable here. It would additionally have to be shown that some
commercial transaction was concluded within the jurisdiction of thisCourt.
19.5 The decision in World Wrestling Entertainment
19.5.1 Banyan Tree Holding was, however, subsequently diluted to an
extent by the judgment of the Division Bench of this Court in World
Wrestling Entertainment.
19.5.2 World Wrestling Entertainment was a case which involved
Section 134 of the Trade Marks Act. The plaintiff World Wide
Wrestling Entertainment28 sought to invoke the jurisdiction of this
Court on the ground that it “carried on business” within the jurisdiction
of this Court. In other words, WWE pressed into service Section::: Downloaded on – 09/05/2026 10:56:19 :::CIS
40 2026:HHC:15075134(2) of the Trade Marks Act. Banyan Tree Holding was cited against
the stand of the WWE.
19.5.3 The Division Bench proceeded to answer this issue thus:
.
“23. Let us now apply these principles to the type of transaction over
the internet, which we have explained above. The website of theappellant/plaintiff refers to various goods and services. It is not an
offer but an invitation to an offer, just as a menu in a restaurant. The
invitation, if accepted by a customer in Delhi, becomes an offer madeof
by the customer in Delhi for purchasing the goods “advertised” on the
website of the appellant/plaintiff. When, through the mode of the
software and the browser, the transaction is confirmed and payment is
made to
rt the appellant/plaintiff through its website, the
appellant/plaintiff accepts the offer of the customer at Delhi. Since the
transaction between the two takes place instantaneously, theacceptance by the appellant/plaintiff is instantaneously communicated
to its customer through the internet at Delhi. Therefore, in such a
case, part of the cause of action would arise in Delhi.
21. But, we are not concerned with the question of cause of action
between the appellant/plaintiff and its customers in Delhi because thedefendants are not such customers and they are, in any event, all
residents of Mumbai. What we are examining is whether the thirdcondition specified in Dhodha House (supra) is satisfied or not. In
other words, if the contracts and/or transactions entered into betweenthe appellant/plaintiff on the one hand and its customers are being
concluded in Delhi, can it not be said that the essential part of the
business of the appellant/plaintiff, insofar as its transactions with
customers in Delhi are concerned, takes place in Delhi? The offers are
made by customers at Delhi. The offers are subject to
confirmation/acceptance of the appellant/plaintiff through its website.
The money would emanate or be paid from Delhi. Can it not then be
considered that the appellant/plaintiff is, to a certain extent, carrying
on business at Delhi? In our view, it would be so. Because of the
advancements in technology and the rapid growth of new models of
conducting business over the internet, it is possible for an entity to
have a virtual presence in a place which is located at a distance from::: Downloaded on – 09/05/2026 10:56:19 :::CIS
41 2026:HHC:15075the place where it has a physical presence. The availability of
transactions through the website at a particular place is virtually the
same thing as a seller having shops in that place in the physical world.
Let us assume for the sake of argument that the appellant/plaintiff had.
a shop in Delhi from where it sold its various goods and services. In
that case, it could not be denied that the plaintiff carried on business in
Delhi. This is apart from the fact that the appellant/plaintiff may alsohave been regarded as having voluntarily resided in Delhi. When the
shop in the ‘physical sense’ is replaced by the ‘virtual’ shop because
of the advancement of technology, in our view, it cannot be said thatof
the appellant/plaintiff would not carry on business in Delhi.
22. Therefore, in our view, although the learned Single Judge had
made a correct reference to the decision of the Supreme Court in the
rt
case of Bhagwan Goverdhandas Kedia30 (supra), the full
ramifications of that decision were not perceived by him. When thetwo decisions of the Supreme Court in Bhagwan Goverdhandas Kedia
(supra) and Dhodha House (supra) are considered in the manner
indicated above, it would appear that, on the averments made by theappellant/plaintiff in the plaint, the Delhi High court would, on a
demurrer, have jurisdiction to entertain the suit inasmuch as the
appellant/plaintiff would be regarded as carrying on business in Delhiwithin the meaning of the expression under Section 134(2) of the
Trademarks Act, 1999 and Section 62(2) of the Copyright Act, 1957.
Consequently, the learned Single Judge ought not to have returned
the plaint under Order 7 Rule 10 CPC. As a result, the impugned order
is set aside and the suit is restored to its original number and the
same be placed before the Roster Bench for further steps therein on
28.10.2014, in the first instance. This, however, would not preclude
the defendants from raising the plea of jurisdiction on facts which, if
raised, could be considered by the court based on the evidence and
upon the law explained above. The appeal is allowed, as above.”
19.5.4 The existence of a website of the plaintiff, over which a
commercial transaction could be concluded was, therefore, regarded
by the Division Bench in World Wrestling Entertainment as sufficient to
amount to “carrying on a business” by WWE within the jurisdiction of
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42 2026:HHC:15075
this Court. The actual conclusion of a transaction was, therefore, no
longer indispensable, after World Wrestling Entertainment.
19.5.5 World Wrestling Entertainment undoubtedly is not an authority
.
for understanding the expression “cause of action” as contained in
Section 20(c) of the CPC. However, it is an authority for the
understanding of the expression “carries on business” in an era in
which business is considerably carried on over e-commerce websites.
The Division Bench has held, in World Wrestling Entertainment, that,
even if the website of the plaintiff was interactive and one over which a
of
commercial transaction could be concluded, that would suffice to
constitute “carrying on of business by the plaintiff”, as, in the e-
commerce universe, every place where the website of an entity would
be accessible for the purpose of concluding a commercial transaction
rt
would amount to a place where the entity has a market place. If,
therefore, WWE had a website over which commercial transactions
could be concluded at Delhi, it was equivalent to WWE having a brick
and mortar store in Delhi, resulting in this Court having territorial
jurisdiction in the matter. Thus, the requirement of actual concluding of
a commercial transaction over the website stands diluted in World
Wrestling Entertainment.
19.6 Section 20(a) of the CPC permit a plaintiff to sue a defendant
wherever the defendant carries on business. The law declared by this
Court in World Wrestling Entertainment with respect to the carrying on
business by the plaintiff, in an e-commerce regime, for the purpose of
Section 134(2) of the Trade Marks Act, would equally apply to carrying
on a business by the defendant for the purpose of Section 20(a) of the
CPC. Wherever, therefore, the defendant would have an interactive
website, over which a commercial transaction could be concluded, any
Court having jurisdiction over every place where this could be done
would have jurisdiction to entertain the suit.
19.7 But then, submits Mr. Raj Shekhar Rao, there is no interactive
website of the respondent, over or across which the allegedly
infringing goods could be purchased at Delhi. At least, the plaint does
not so aver. The placement of the goods for sale over e-commerce
websites by third parties, without the concurrence or authorization of
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43 2026:HHC:15075
the respondent, tacit or express, could not create a cause of action for
the appellant, for the purposes of territorial jurisdiction.
19.8 The submission is unquestionably weighty. After all, the tort of
.
infringement is not infringer innocent. Section 29 of the Trade Marks
Act envisages infringement only vis-à-vis an infringer, who must be
using the infringing marks without proprietorial or permissive right to
do so. The finding of the learned Single Judge that, if the respondent
has nothing to do with the listing of the allegedly infringing products on
the IndiaMart and Kalgudi websites, the respondent cannot be held to
of
account therefor is, therefore, prima facie correct.
19.9 Where, however, the learned Single Judge, in our considered
opinion, has erred on this issue is in the observation, in para 42 of the
rt
impugned judgment, that the listing of the products on the IndiaMart
and Kalgudi websites was not at the instance of the respondent. In so
observing, the learned Single Judge, in our considered opinion, failed
to realize the fact that the issue before him was the right of the
appellant to sue. Insofar as the appellant was concerned, the allegedly
infringing goods were available, for sale and purchase, across e-
commerce websites, over which a transaction could be concluded
within the territorial limits of the jurisdiction of this Court. There is no
admission, in the plaint, that the listing of the products on the
IndianMart or Kalgudi websites was not at the instance of the
respondent. It would be for the respondent to so aver, and that
averment, which could emerge at the earliest in the respondent’s
written statement, could not be considered while examining the aspect
of territorial jurisdiction under Order VII Rule 10, which has to be
limited to the assertions in the plaint. At the highest, therefore, the
issue of whether the respondent had anything to do with the listing of
the allegedly infringing goods over the IndiaMart or Kalgudi websites
would be a matter of trial. Arguendo, if the appellant were able to
establish, in trial, that the entities who placed the respondent’s goods
for sale and purchase on the IndiaMart and Kalgudi websites did so at
the instance of the respondent, or with its knowledge, the respondent
might still be answerable therefor.
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19.10 That the goods were, in fact, available for purchase across the
IndiaMart and Kalgudi websites, is not disputed. That the goods could
be purchased across the said websites within the jurisdiction of this
Court, is equally not disputed. Whether the respondent, directly or
.
indirectly, was involved in the said listings, is, at best, a matter of trial.
The learned Single Judge could not, therefore, have held that the
appellant could not sue the respondent in this Court, even when the
allegedly infringing goods could be purchased, across the IndiaMart
and Kalgudi websites, within its jurisdiction, on the premise that the
respondent was innocent of the listings.
of
19.11 For the purposes of an application under Order VII Rule 10 of
the CPC, these assertions, in the absence of anything to the contrary
either in the plaint or in the documents filed with the plaint, had to be
rt
treated as correct.
19.12 The assertion that the allegedly infringing goods of the
respondent were available on the IndiaMart and Kalgudi websites, and
that orders could be placed on these websites within the territorial
jurisdiction of this Court were, therefore, sufficient to confer jurisdiction
on this Court to adjudicate on the suit.
19.13 We are in agreement with Mr. Agarwal that the issue of whether
the listings on the IndiaMart and Kalgudi e-commerce platforms, of the
allegedly infringing goods of the respondent, for sale, were at the
instance of the respondent or of some other party, is extraneous to the
aspect of territorial jurisdiction. Once the infringing goods were
available for sale, the tort of infringement, which predicates use of the
infringed mark, or a mark which is deceptively similar thereto, for
trade, stood committed. The suit, seeking relief thereagainst, could be
filed before every Court having territorial jurisdiction over the situs of
sale of such goods. World Wrestling Entertainment extends, in a case
of e-commerce, the situs to include every place where a commercial
transaction could be concluded and the goods bought or sold. Every
Court having jurisdiction over such place can, therefore, adjudicate on
the aspect of infringement, or passing off. The decision of the learned
Single Judge is clearly contrary to this principle.
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19.14 There is no dispute about the fact that the allegedly infringing
products of the respondent were available on IndiaMart and Kalgudi. It
was specifically asserted, in the plaint, that the IndiaMart and Kalgudi
websites were accessible in Delhi. In paras 49 and 50 of the plaint, it
.
was further specifically pleaded that, as orders could be placed across
these websites, the dynamic effect of the availability of the
respondent’s goods on the said e-market platforms was felt within the
jurisdiction of this Court.
19.15 The findings of the learned Single Judge with respect to the
of
listing of the products on the IndiaMart and Kalgudi platforms is also,
therefore, not sustainable in law.”
56.
rt
Mr. L. Badri Narayanan further argued that impugned product on
Indiamart is listed by a third party and not the defendant, however,
having carefully perused the printout of relevant page of Indiamart
(Annexure P-19, page 219 of plaintiff’s document), this Court finds that
defendant’s name is clearly listed as seller of impugned product on
Indiamart Website. Moreover, defendant has not denied plaintiff’s
assertion that defendant is selling impugned product on Indiamart (see
para-19 of application).
57. Mr. L. Badri Narayanan further argued that the sale of impugned
product, for which invoices are placed is a trap sale, therefore, this
Court could not assume jurisdiction based on such trap. However, this
Court is not persuaded to agree with learned counsel for the defendant
for the reason that sale of impugned product has been made through
ordinary course of trade to a legitimate company, carrying on business
i.e. Urbtech Engineering Construction Private Limited and not to an
individual engaged by the plaintiff. Moreover, sale was not for a small
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46 2026:HHC:15075
sample but for 525 square metres of impugned product, worth Rs.4.89
Lakh.
58. Leaving everything aside defendant is promoting and selling its
.
products including the impugned products (‘TechSlope Mesh’)
throughout India (See para-6 of written statement).
59. In view of the detailed discussion made supra and various
judgments passed on the subject by Hon’ble Apex Court and other
of
High Courts, this court finds no merit in the present application and the
same is accordingly dismissed.
COMS No 23 of 2024 & Counter Claim No. 5 of 2025
rt
60. Be listed on 17.6.2026, for arguments on OMP No. 1079 of
2024.
(Sandeep Sharma)
Judge
May 6, 2026
Vikrant
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47 2026:HHC:15075
Head note
Order VII, Rule 11 of Code of Civil Procedure, 1908- Rejection of Plaint – Suit for permanent
prohibitory injunction restraining defendant from infringing patents of plaintiff-plaintiff purchased
allegedly infringing product from third party, which was not arrayed as defendant-impugned
infringing product delivered by defendant at Kullu to third party- jurisdiction-pre-institution
.
mediation not exhausted by plaintiff- held, third party not a necessary party and further same is
not a ground for rejection of plaint under Order VII, rule 11 CPC– also held since impugned
product is available for sale throughout country, also in Kullu, Himachal Pradesh, court has
jurisdiction- further held when urgent interim relief not claimed, pre-institution mediation not
mandatory- application dismissed.
of
rt
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