Suit Cannot Be Rejected Partially Under Order VII Rule 11 Of CPC: Delhi High Court

The Delhi High Court has observed that there cannot be a partial rejection of a suit under Order VII Rule 11 of Code of Civil Procedure.

Justice Amit Bansal was dealing with two applications filed under Order VII Rule 10 and Order VII Rule 11 of the CPC in a trademark infringement suit.

The suit was filed seeking mandatory and permanent injunction against the defendants restraining them from passing off and violating the registered trademark and trade names of the defendant no. 4 Company, which owned and ran a famous eye hospital by the brand and trade name of 'Spectra Eye'.

The defendant no. 1 had preferred the applications under Order VII Rule 10 of the CPC on the ground that High Court does not have the territorial jurisdiction to entertain the suit. Regarding the other application, it was argued that the suit was not maintainable as no cause of action had arisen and that the same was undervalued for the purposes of Court fees. It was also argued that the suit wS not maintainable in view of Section 430 of the Companies Act.

The Court noted that two of the properties in respect of which the reliefs were claimed in the plaint were situated in Gurugram, Haryana.

"Where a relief is sought in the plaint in respect of an immovable property, and which relief can be entirely obtained through the personal obedience of a defendant, the suit can be instituted in the Court within whose jurisdiction the said defendant resides or works for gain. Section 17 of the CPC is also in the nature of an exception to the provisions of Section 16 of the CPC and specifically provides that where in a suit, reliefs are sought in respect of one or more immovable properties that are located within the jurisdiction of different courts, the plaintiff may file a suit in any of the courts within whose jurisdiction any portion of the property is situated," the Court said.

Noting the plaintiffs had sought a specific direction, whereby the defendant no.1 be directed to hand over possession of the suit properties, the Court was of the view that in the event that the decree was required to be executed, as per the provisions of the sec. 39(1)(c) of the CPC, the said decree may be transferred to the competent courts in Gurugram, Haryana for execution.

"At this stage, while deciding an application under Order VII Rule 10 of the CPC, the Court has only to see the averments made in the plaint and, therefore, in light of the averments made in the plaint, in my view, the proviso to Section 16 of the CPC and Section 17 of the CPC would be applicable to the present case," the Court said.

Regarding the contention that the suit was barred in view of sec. 43 of the Companies Act, it was argued that most of the reliefs sought under the plaint lie within the domain of the NCLT and, therefore, in terms of the bar, High Court was debarred from granting such reliefs.

"Even if the contention of the contesting defendants is accepted that there is similarity of reliefs sought under prayers C and D in the present suit with the relief sought under the Company Petition bearing CP No.227/2017, whereby the defendants are sought to be injuncted from continuing or carrying out the competing businesses, it may be relevant to note that the defendants no.5 and 6, in respect of whom the present reliefs are sought, were not parties to the proceedings before the NCLT," the Court said.

It added "Furthermore, in my view, there cannot be a partial rejection of a suit under the provisions of Order VII Rule 11 of the CPC."

The Court also added that concealment by itself cannot be a ground for rejection of the plaint under the provisions of Order VII Rule 11 of the CPC.

Accordingly, the applications were dismissed.

Title: DR RAMESH CHANDER MUNJAL & ORS. v. DR SURAJ MUNJAL & ORS.

Citation: 2022 LiveLaw (Del) 327

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