The Division Bench of this Court in the case of Allied Blenders & Distillers Pvt. Ltd. v. Prag Distillery Pvt. Ltd.&Anr.: 2017 SCC OnLine Del 7225,held as under:
“10. If an application under Order VII Rule 10 of the
Code is to be decided on the assumption that the averments
made in the plaint are correct, then, it will have to be
assumed that there is a reasonable apprehension that the
defendants would sell their product in Delhi bearing the
impugned mark and label. There is no dispute with the
proposition that a quia timet action is based upon an
apprehended use and is preventive in nature intended to
prevent an apprehended wrong and an anticipated mischief.
If we were, for the time being, to ignore the fact that the
respondent No. 1/defendant No. 1 was already selling the
impugned product under the impugned mark and label in
Andhra Pradesh, then the mere fact that the plaint contained
an averment that there was credible and imminent
apprehension that the infringing product would be launched
by the defendants within the territorial jurisdiction of this
court, would by itself constitute a cause of action. If this be
the case, can it be said that just because the defendants were
already selling the product in Andhra Pradesh it would take
away part of the cause of action which was preventive of a
future conduct on the part of the defendants? We think not.
11. We are of the view that the learned single Judge fell
in error when he took the view that although the
appellant/plaintiff had averred that it had an apprehension
that the defendants would sell their product in Delhi, the
said apprehension was not substantiated by any material
which would indicate a reasonable ground for the plaintiff
to apprehend the same. We may point out that substantiation
of an averment in a plaint by other material would come
later. At the stage of filing of the plaint, it is only the
averment that has to be made with regard to a material fact.
Substantiation is a part of evidence.”
22. It was categorically held that the stage for substantiation of
an averment in the plaint by other material would come later and at the stage of filing of the plaint, it is only the averment that has to be made with regard to the material fact. Substantiation is part of evidence. In our opinion, the learned Commercial Court fell in error in returning the plaint by exercising power under Order VII Rule 10, CPC.
23. Clearly, if the averments in the plaint are accepted to be
true, the learned Commercial Court would definitely have the
territorial jurisdiction to entertain the suit. As held by the Apex
Court and reiterated by this Court in various judgments as
referred above, we have no hesitation to hold that the application
under Order VII Rule 10, CPC, is to be considered on demurrer;
that is, the averments made in the plaint are to be assumed as
correct.
IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO (COMM) 139/2022 and CM APPL. 41704/2022
PUMA SE VS D.K. ARORA
CORAM
HON’BLE MR. JUSTICE VIBHU BAKHRU
HON’BLE MR. JUSTICE AMIT MAHAJAN
Author: AMIT MAHAJAN, J
Judgment delivered on : 29.11.2022
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