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[Cites
52
, Cited by
0
]
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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2                            2026:HHC:15075

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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3                            2026:HHC:15075

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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4                             2026:HHC:15075

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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5                             2026:HHC:15075

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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6                            2026:HHC:15075

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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7                             2026:HHC:15075

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 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 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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8                            2026:HHC:15075

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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9                              2026:HHC:15075

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
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10                                2026:HHC:15075

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 to comply with the provisions of
         rule 9

Provided 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 be

of
         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 the

plaintiff." (emphasis supplied)

23.2     The remedy under Order VII Rule 11 is an
         independent and special remedy, wherein the Court is

empowered 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 satisfied

that 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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11                              2026:HHC:15075

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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12                              2026:HHC:15075

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, a

decree 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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13                           2026:HHC:15075
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
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14                            2026:HHC:15075

dated 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) Nasyam

Ibrahim 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 of

lands 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. Without

challenging partition deed dated 11.03.1953 and even subsequent gift
     deed dated 24.01.1968, the plaintiffs have instituted the present suit

with 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 be

challenged 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
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15                             2026:HHC:15075

the 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 was

of
            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, it

should 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 is

needless 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 deciding

the 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
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16                            2026:HHC:15075

value, 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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17                          2026:HHC:15075
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 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

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:15075

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.
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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20                            2026:HHC:15075
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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21                            2026:HHC:15075
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, or

Order II Rule 3 on the other, the Code itself indicates that the
          perceived defect does not make the suit one barred by law or

liable 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 the

Code which provides that no suit shall be defeated by reason of
          non- joinder or misjoinder of parties and the court may in either

case 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 exclude

from consideration. It is therefore necessary to see whether a
     suit bad for misjoinder of parties or of causes of action is

of
     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 also

be 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 of

parties or of causes of action is barred by a law, here the Code.
This may be contrasted with the failure to comply with
Section

80
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 view

that 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
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24                           2026:HHC:15075

is 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 to

be 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 or

the 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 to

try 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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25                             2026:HHC:15075

"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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26                             2026:HHC:15075

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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27                            2026:HHC:15075

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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28                           2026:HHC:15075

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 the

buyer 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 a

wharfinger 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 not

deemed 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 and

before 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 was

reasonable would, like any other question of fact, depend on the
           circumstances of each case. It would also depend on the terms of the

contract.
(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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32                          2026:HHC:15075

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 manifested

his 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 is

privileged to return goods found to be defective will vary with many
     circumstances, as, for instance, the nature of the defects, whether

patent or concealed. We think assent to appropriation is something
     more immediate and certain. It does not signify an acceptance so

definitive 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
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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:15075

Enterprises 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 parties

and 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 parties

as 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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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 the

impugned order.
12. The appellant claims that it is not selling the goods bearing
     the offending trademarks in NCT of Delhi or through the online market

of
     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 if

an 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, the

said 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 for

infringement 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
     that it is selling the goods clandestinely or using any third-party
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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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38                              2026:HHC:15075

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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SCC 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 has

been 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 of

an interactive website of the defendant, accessible within the territorial
           jurisdiction of this Court, would not be sufficient for the suit to be

maintainable here. It would additionally have to be shown that some
           commercial transaction was concluded within the jurisdiction of this

Court.
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
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134(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 the

appellant/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 made

of
     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, the

acceptance 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 the

defendants are not such customers and they are, in any event, all
     residents of Mumbai. What we are examining is whether the third

condition specified in Dhodha House (supra) is satisfied or not. In
     other words, if the contracts and/or transactions entered into between

the 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
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41                            2026:HHC:15075

the 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 also

have 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 that

of
     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 the

two 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 the

appellant/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 Delhi

within 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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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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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.
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                         rt
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