In an appeal filed by Jabir Hussain Trading as M/S Hakeem Hotel trading as M/S Hakeem Hotel (“Appellant”/ “Plaintiff”) v Ali Asgar trading as M/S. Hakeem Restaurant (“Respondent”/ “Defendant”), the Delhi High Court examined the question of whether a plaint returned under Order VII Rule 10 of the Code of Civil Procedure,1908 (“CPC”) is required to be examined solely on the basis of the averments made in the plaint and the documents filed by the plaintiff. The Delhi High Court, on 15th April 2024, held that for the purpose of Order VII Rule 10 of the CPC, only the averments made in the plaint are required to be examined, and the suit was restored before the Commercial Court for further proceedings.
In this case, the appellant appealed to the Delhi High Court after the Commercial Court, vide its order dated 9th November 2024, returned the plaint filed by the appellant on the ground that the Court did not have the territorial jurisdiction to entertain the suit. The appellant sought a permanent injunction restraining the respondent from infringing and passing off its trademarks. The appellant claimed to be the proprietor of the registered trademarks “HAKEEM HOTEL”
and “HAKEEM FOODS”
under classes 29, 30 and 43, which have had user details since 1971.
The appellant submitted that the respondent opened a restaurant in Bhopal, Madhya Pradesh, called “HAKEEM RESTAURANT” and adopted the trademark “HAKEEM RESTAURANT,” keeping in view the immense goodwill garnered by the respondent.
The appellant claimed that the respondent is planning to market and network to operate a physical restaurant/ franchisee in North Delhi. For this purpose, it is actively networking in Pitampura, Shalimar Bagh, Sultanpuri, Khera Kalan, Khera Khurd, North West Rohini, and North Rohini. Further, any customer could book a table at the respondent’s restaurant by using the interactive site from Delhi, and other food delivery service providers are also accepting orders for delivery of cooked food from the respondent’s restaurant.
The Commercial Court examined the question of whether the interactive sites for booking a table or delivery of cooked food could give rise to cause of action in respect of a restaurant operated in the city of Hyderabad and held that the same was covered by the decision of the Delhi High Court in the case of Impresario Entertainment & Hospitality Pvt. Ltd. v. S&D Hospitality: 2023:DHC:3919, wherein it was held that mere interactivity of the website in the forum State did not attract its jurisdiction. Accordingly, the learned Commercial Court returned the appellant’s plaint.
The respondent argued that trademarks referred to by the appellant are not registered in favour of the appellant. The trademarks claimed by the appellant are under objection, and the registrations have not been granted. The appellant submitted that the said trademarks are registered in favour of the appellant, and rectification applications have been filed, which are pending.
The main question in this case was whether the plaint returned under Order VII Rule 10 of the CPC is required to be examined solely on the basis of the averments made in it and the documents filed by the plaintiff.
The Order of the Delhi High Court
The Delhi High Court referred to the observations of the Supreme Court in the case of Exphar SA & Anr. v. Eupharma Laboratories Ltd. & Anr.: (2004) 3 SCC 688, and M/s RSPL Ltd. v. Mukesh Sharma & Anr.:2016 SCC OnLine Del 4285, wherein it was held that a plaint returned under Order VII Rule 10 of the CPC is required to be examined on the basis of the plaint and the documents filed by the plaintiff and without considering the defence raised by the defendant.
Referring to the above principles, the Delhi High Court, in this case, pointed out that the cause of action for the present suit first arose in September 2023 when the plaintiff came to know about the existence of the defendant’s restaurant under the impugned marks. The cause of action is a continuous one and continues to subsist till such time the defendant is restrained by an order of injunction passed by this Hon’ble Court from using the marks HAKEEM/HAKEEM RESTAURANT any other mark which is deceptively and confusingly similar to the plaintiff’s marks HAKEEM HOTEL, HAKEEM FOODS. The cause of action is arising within the territorial jurisdiction of this Hon’ble Court as the defendant is offering its goods/services through various third-party e-commerce websites/portals/apps viz. Zomato, Swiggy, etc., are well within the territorial jurisdiction of this Hon’ble Court.
The Court also heavily relied on the case of M/s. Allied Blenders & Distillers Pvt. Ltd. v. Prag Distillery Pvt. Ltd. & Anr.: 2017 SCC OnLine Del 7225, wherein there were no averments in the main pleadings, which indicate that any cause of action had arisen in the territorial jurisdiction of Delhi. However, in the paragraph setting out the cause of action, the plaintiff had expressed an apprehension that the defendant would launch the product in Delhi. It was pointed out that substantiation of an averment in a plaint by other material would come later. At the stage of filing the plaint, it is only the averment that has to be made with regard to a material fact, and substantiation is a part of the evidence.
The Court opined that the above case covers the controversy involved in the present case. Accordingly, it was held that the defence raised by the respondent cannot be looked into at the threshold stage for returning the plaint on account of lack of territorial jurisdiction. The question of whether a plaint is required to be returned under Order VII Rule 10 of the CPC is required to be examined solely on the basis of the averments made in the plaint and the documents filed by the plaintiff. Consequently, the order of the Commercial Court was set aside, clarifying that the rights and contentions of the parties were reserved and that the suit before the Commercial Court was restored.
