* IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) No.1180/2011 & connected matters % 15 th February, 2016 1. CS(OS) No.1180/2011 GUINESS WORLD RECORDS LIMITED... Plaintiff Ms. Kripa Pandit, Advocate with Mr. Chander M. Lall, Advocate. SABABBI MANGAL... Defendant Mr. Pankaj Agarwal, Advocate. 2. CS(OS) No.1438/2009 THE ECONOMIST NEWSPAPER LIMITED... Plaintiff Mr. Manav Kumar, Advocate. MR. SHIV HARIT... Defendant 3. CS(OS) No.2599/2010 PEPSICO, INC AND ORS.... Plaintiffs Mr. Dheeraj Nair, Advocate with Mr. Kunal Mimani, Advocate. DUGAR SPICES AND EATABLES (P) LTD. AND ORS.... Defendants CS(OS) No.550/2008 & conn. matters Page 1 of 15
4. CS(OS) No.2903/2012 DHANANJAY K THECKEDATH AND ANR.... Plaintiffs Ms. Sarita Rout, Advocate. SANJAY SHARMA AND ANR.... Defendants Mr. Umesh Mishra, Advocate. 5. TR. P. (C) No.1/2016 M/S NAV JAGRITI NIKETAN EDUCATION SOCIETY... Petitioner Mr. S. K. Bansal, Advocate with Mr. Ajay Amitabh Suman, Advocate. DELHI INTERNATIONAL SCHOOL AND OTHERS...Respondents Mr. Shailen Bhatia, Advocate with Mr. Arun Kumar Jha, Advocate. Mr. Aman Sinha, Advocate with Mr. Sanjai Pathak, Advocate and Mr. Pravesh Thakur, Advocate for respondent No.2. 6. CS(OS) No.865/2012 GODFREY PHILLIPS INDIA LTD... Plaintiff Ms. Namrita Kochhar, Advocate. DHARAMPAL SATYAPAL LTD AND ANR.... Defendants Mr. Bishwajit Dubey, Advocate with Ms. Surabhi Khattar, Advocate. 7. CS(OS) No.2342/2010 CS(OS) No.550/2008 & conn. matters Page 2 of 15
MUZAMMIL REHMAN... Plaintiff Mr. S. K. Bansal, Advocate with Mr. Ajay Amitabh Suman, Advocate. M/S J WALTER THOMPSON COMPANY LIMITED (J.W.T) AND OTHERS... Defendants Mr. Prashant Mehra, Advocate for defendant No.1. Mr. Ankur Gupta, Advocate for defendant No.2. Mr. Pravin Anand, Advocate with Ms. Vaishali Mittal, Advocate and Ms. Prachi Agarwal, Advocate for defendant No.3. 8. CS(OS) No.550/2008 MARICO LTD.... Plaintiff Mr. Zeeshan Khan, Advocate. DIVINE PHARMACEUTICALS... Defendant CORAM: HON BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? Yes VALMIKI J. MEHTA, J (ORAL) CS(OS) Nos. 1180/2011, 1438/2009, 2599/2010, 2903/2012, 865/2012, 2342/2010 & 550/2008 CS(OS) No.550/2008 & conn. matters Page 3 of 15
1. Irrespective of the reason why each individual suit or transfer petition or pending amendment application seeking enhancement of pecuniary jurisdiction is listed before this Court, the issue to be decided by this Court is the interpretation of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (in short the Act of 2015) when it uses the expression filed or pending in the first proviso of Section 7 thereof. The issue is that whether the expression filed or pending means that this Court will entertain all pending matters even though this Court does not have pecuniary jurisdiction to entertain the suit. 2. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015 (Ordinance, 2015) came into effect from 23.10.2015. Section 7 and the first proviso to Section 7 of the Ordinance, 2015 read as under: All suits and applications relating to commercial disputes of a Specified Value filed in a High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of that High Court: PROVIDED that all suits and applications relating to commercial disputes, stipulated by an Act to lie in a court not inferior to a District Court, and filed on the original side of the High Court, shall be heard and disposed of by the Commercial Division of the High Court: (underlining added) CS(OS) No.550/2008 & conn. matters Page 4 of 15
3. The first proviso of Section 7 of the Ordinance, 2015 stated that the suits and applications relating to commercial disputes stipulated by a statute lie in a court not inferior to a District Court and filed on the original side of the High Court shall be heard and disposed by the Commercial Division of the High Court. The words and filed used in the first proviso to Section 7 of the Ordinance, 2015 did refer to the cases which were filed in the High Court to be heard and disposed of by the High Court and which words in one manner can lead to the interpretation that as long as it was originally filed in the High Court, irrespective of the pecuniary jurisdiction of this pending suit not being of the specified value, High Court in its Commercial Division would, still continue to hear and dispose of the suit. However, equally another interpretation of the words and filed could also be that if the suit was filed in the High Court, the High Court could only continue to hear and dispose of the suit if the High Court continued to have pecuniary jurisdiction i.e the suit had to be of a specified value as stated in the Ordinance, 2015. Therefore, possibly something was left unsaid by the legislature when it used the words and filed if these words were intended to continue to vest a Commercial Division of the High Court to try and dispose of the suit originally filed in the High Court although subsequently the High Court would not have pecuniary jurisdiction to try the matter CS(OS) No.550/2008 & conn. matters Page 5 of 15
including for the reason that the pecuniary jurisdiction of the suit was below the threshold limit of rupees one crore as required by the Ordinance, 2015. 4. On account of possibility of different interpretation of the words and filed found in the first proviso to Section 7 of the Ordinance, 2015, the appropriate authorities and the legislature moved in. This happened by two things. Firstly, the Government of India Cabinet, Press Information Bureau, issued a Press Note on 16.12.2015, i.e after passing of the Ordinance, 2015 and before passing of the Act of 2015 which succeeded the Ordinance, and in this Press Note which was issued it was made clear that the amendment was required to the first proviso to Section 7 of the Ordinance, 2015 so that there is no doubt remaining therein that the said first proviso to Section 7 will also apply to pending cases i.e the words used in the first proviso of Section 7 in the Ordinance 2015 being and filed were to be construed to be applicable even for the pending cases. 5. No doubt only a Press Note issued by the Press Information Bureau, Government of India, Ministry of Law and Justice stating that the amendment would be made to the first proviso to Section 7 of the Ordinance, 2015, may not have been of conclusive help, however, the issue has become further simple with respect to the interpretation of the CS(OS) No.550/2008 & conn. matters Page 6 of 15
expression filed or pending as found in the Act of 2015 because of the 78 th Report submitted to the Rajya Sabha by the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. This report contained the reasons for bringing in various provisions of the Act of 2015, and more importantly and particularly the reason for changing the words and filed found in the first proviso to Section 7 of the Ordinance 2015 to the expression and filed or pending as found in the Act of 2015. The relevant para of this 78 th Report containing the observations and recommendations of the Standing Committee is para 34 which reads as under: 34. The Committee feels that the transfer of all pending commercial disputes to the proposed Commercial Court/Division may overburden the said courts and defeat the very purpose of establishing them. There may not be requirement of Commercial Courts in some States as they have limited number of such cases. The Committee recommends that instead of transferring the pending cases to Commercial Courts, a sunset clause may be inserted in the Bill whereby only fresh cases with a pecuniary limit may be transferred to Commercial Courts. However, the litigants may be given a choice to move Commercial Courts if the pending dispute is of commercial nature as per the Schedule of the Bill (underlining added) 6. The underlined portion of para 34 of the report of the Standing Committee leaves no manner of doubt that there was to be a sunset clause whereby only fresh cases having the pecuniary limit were filed before the Commercial Divisions and so far as the pending cases were concerned, the CS(OS) No.550/2008 & conn. matters Page 7 of 15
same were not to be transferred and to be taken up by the Commercial Courts-Commercial Courts meaning the Commercial Division of the High Court so far as the High Courts having original jurisdiction. 7. Let me now therefore reproduce Section 7 which has been introduced by the Act of 2015 in its entirety and this provision reads as under:- 7. Jurisdiction of Commercial Divisions of High Court All suits and applications relating to commercial disputes of a Specified Value filed in a High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of that High Court: Provided that all suits and application relating to commercial disputes, stipulated by an Act to lie in a court not inferior to a District Court, and filed or pending on the original side of the High Court, shall be heard and disposed of by the Commercial Division of the High Court: Provided further that all suits and applications transferred to the High Court by virtue of sub-section (4) of section 22 of the Designs Act, 2000 or section 104 of the Patents Act, 1970 shall be heard and disposed of by the Commercial Division of the High Court in all the areas over which the High Court exercises ordinary original civil jurisdiction. (underlining added) 8. It is clear that the expression and filed has been elaborated by the Legislature to mean those cases which are filed or pending i.e even if a case is pending as on the date of bringing in the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, such pending cases will be continued to be tried by the CS(OS) No.550/2008 & conn. matters Page 8 of 15
Commercial Division of the High Court irrespective of these matters not being above the specified value and being below the specified value upto Rs.1 crore. There cannot be any other interpretation of the expression being of the words and filed or pending as found in the first proviso to Section 7 of the Act of 2015. If these words are to be interpreted to mean that cases which are filed and pending will have to be transferred since their pecuniary value is less than rupees one crore, then the same will defeat the intention of the legislature in changing the language of the first proviso to Section 7 whereby the words and filed has been amended to and filed or pending. 9. Of course, I must concede that the language contained in the first proviso to Section 7 could have been still better worded to have additional words irrespective of the pecuniary jurisdiction, however, in my opinion, the very intention of the legislature can be ganged enough by the adding of the words or pending in the first proviso to Section 7 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. 10. At this stage, I am reminded of a very unforgettable rule used in a judgment dealing with the interpretation of statutes and which is that the golden rule is that there is no golden rule. This is stated inasmuch as, CS(OS) No.550/2008 & conn. matters Page 9 of 15
though there are various doctrines of interpretation whether of literal interpretation or purposive interpretation or Heydon s Rule and so on, however, ultimately the issue of interpretation boils down to the specific statute and the reason why original words as found have been amended and finally that the context and setting where the words are used has to be read so as to give purpose to bringing in of the necessary words and expressions in the statute. 11. I may also note that the entire object of Section 7, whether as found in the Ordinance, 2015 or found in the Act of 2015, was that the subject matter of Section 7 was those suits which could not be filed in courts below the court of the District Judge. Suits which are the subject matter of Section 7 are all those suits which could not be filed in a court below the District Judge but could be filed only either before the court of the District Judge or before the High Court. These matters are those which are generally called as IPR matters, and which includes trademarks cases, copyright cases etc which are the subject matter of statutes which contain such provisions that suits under these Acts should not be filed and cannot be entertained by courts below the courts of the District Judge. The relevant provisions in this regard are Section 134 of the Trade Marks Act, 1999 and CS(OS) No.550/2008 & conn. matters Page 10 of 15
Section 62 of the Copyright Act, 1957 etc. These Sections are depicted in the chart below:- Statute Relevant Provisions Patents Act, 1970 Section 104 Jurisdiction- No suit for a declaration under section 105 or for any relief under section 106 or for infringement of a patent shall be instituted in any court inferior to a district court having jurisdiction to try the suit Provided that where a counterclaim for revocation of the patent is made by the defendant, the suit, along with the counterclaim, shall be transferred to the High Court for decision Trade Marks Act, 1999 Section 134: Suit for Infringement, etc. to Be Instituted Before District Court- (1) No suit- (a) for the infringement of a registered trademark; or (b) relating to any right in a registered trademark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff s trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having Designs Act, 2000 Proviso to Section 22(2) No suit or any other proceeding for relief under this subsection shall be instituted in any court below the court of District Judge. Copyright Act, 1957 Section 62 Jurisdiction of court over matters arising under this Chapter- (1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction. (2) For the purpose of subsection (1), and district court having jurisdiction shall, notwithstanding anything contained in the Code of Civil Procedure, Geographical Indications of Goods (Registration and Protection) Act, 1999 Section 66-Suit for infringement, etc., to be institute before district court (1) No suit,- (a) for the infringement of a registered geographical indication; or (b) relating to any right in a registered geographical indication; or (c) for passing of arising out of the use by the defendant any geographical indication which of is identical with or deceptively similar to the geographical indication relating to the plaintiff, CS(OS) No.550/2008 & conn. matters Page 11 of 15
jurisdiction try the suit. to For the purpose of clauses (a) and (b) of subsection (1), a District Court having jurisdiction shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. 1908 or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain. whether registered or unregistered, shall be instituted in any court inferior to a district court having jurisdiction try the suit. to (2) For the purpose of clauses (a) and (b) of subsection (1), a district Court having jurisdiction shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or CS(OS) No.550/2008 & conn. matters Page 12 of 15
carries on business or personally works for gain. Explanationfor the purposes of sub-section (2), person includes the registered proprietor and the authorised user. 12. Keeping in mind the original intendment of Section 7, and the words as now found in the first proviso to Section 7 of the Act of 2015, one is left in no manner of doubt that with respect to IPR matters, whose statutes and the provisions are reproduced in the above chart, such matters once they are pending in the High Court as on the date of introducing of the Act of 2015 published in the Gazette Notification dated 1.1.2016, such matters will be heard and disposed of by the Commercial Divisions of the High Court even if the pecuniary jurisdiction of these matters are below Rs.1 crore. 13. Accordingly, this Court s conclusion with respect to the language contained in the first proviso to Section 7 of the Act of 2015 is that with respect to IPR matters covered under the different provisions of the Trade Marks Act, Copy Right Act, Designs Act, Patents Act and Geographical Indication of Goods (Registration And Protection) Act, 1999 CS(OS) No.550/2008 & conn. matters Page 13 of 15
is that the pending suits and which are the subject matter of the words filed or pending contained in the first proviso to Section 7 of the Act of 2015, such suits or IPR matters, even if their valuation is below Rs.1 crore, the same will be dealt with and decided by the Commercial Division(s) of the High Court if their pecuniary jurisdiction valuation is above Rs. 20 lacs (for Delhi High Court) but below Rs.1 crore. 14. The issue with respect to first proviso to Section 7 of the Act of 2015 is answered accordingly. 15. This Court expresses its gratitude to Ms. Kripa Pandit, Advocate who has very ably argued on the issue which is decided in the present judgment by supporting the arguments with the requisite material. 16. Each of the suits which are therefore the subject matter of the present judgment will be listed for further proceedings before the Joint Registrar on 5 th May, 2016. TR. P.(C) No.1/2016 17. This transfer petition stands allowed in terms of the prayer made therein and the suit which has been transferred to the concerned CS(OS) No.550/2008 & conn. matters Page 14 of 15
jurisdictional District Court will be re-transferred to this Court. All pending applications also stand disposed of accordingly. I.A. No.17748/2015 (u/o VI Rule 17 CPC) in CS(OS) No.1180/2011 I.A. No.24164/2015 (u/o VI Rule 17 CPC) in CS(OS) No.2599/2010 18. Disposed of as not pressed. FEBRUARY 15, 2016 dkg/ib VALMIKI J. MEHTA, J CS(OS) No.550/2008 & conn. matters Page 15 of 15