D.A.V.Boys
Sr.Sec.School Etc. Vs. Dav College Managing Committee [2010] INSC 518 (23 July
2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION TRANSFER PETITION (CIVIL)
NOS. 1233-1237 OF 2008 D.A.V. Boys Sr. Sec. School Etc.Etc. .... Petitioner(s)
Versus DAV College Managing Committee .... Respondent(s) WITH TRANSFER PETITION
(C) NOS. 243-244 OF 2009 AND TRANSFER PETITION (C) NO. 667 OF 2009
P.
Sathasivam, J.
1.
The petitioners in Transfer Petition (Civil) Nos. 1233- 1237 of
2008 and 243-244 of 2009 are schools run by the Tamil Nadu Arya Samaj Education
Society (in short "the Society") which is registered under the
Societies 1 Registration Act, 1860. According to the petitioners, the Society
was registered on 02.01.1975 and has been running and managing schools for the
last more than 30 years. The schools are being run under a specific system of
education propounded by "Swami Dayanand Saraswati" known as
"Dayanand Anglo Vedic" system (in short "DAV"). The
petitioners have been using the expression "DAV" with its schools for
the last more than 30 years.
The
respondent-Committee is running about 700 educational institutions. On
16.01.2005, the respondent- Committee has obtained a trademark registration in
respect of the letters "DAV" and "Dayanand Anglo Vedic" under
Class 41 which is a service mark. On 04.08.2008, the respondent-Committee
issued a notice to the petitioners of "cease and desist", namely, the
petitioners should not use the words "DAV" for its schools. On
25.08.2008, the petitioners through their advocate replied to the said notice
informing that the schools are being run by the Society for the last 38 years
with the words "DAV". 2 The respondent-Committee filed four suits
under Section 134 of the Trade
Marks Act, 1999 before the District Court, Tis
Hazari, Delhi against various schools run by the Society at Chennai
individually without making the Society as a party.
1.
2.
Transfer Petition (Civil) No. 667 of 2009 is filed by another
petitioner from Chennai alleging that it is running and managing a school using
the expression "DAV" for more than 24 years. It also raised similar
plea seeking transfer of suit No.417 of 2008 titled DAV College Managing
Committee vs. Dayanand Anglo Vedic School pending in Tis Hazari Court, Delhi to
the original side jurisdiction of the High Court of Madras.
3.
Opposing the transfer petitions, the respondent- Committee which
has filed suits at Delhi has highlighted that it is a duly registered society
with the Registrar of Societies under the Societies Registration Act, XXI of
1860. Dayanand Anglo Vedic College Trust and 3 Management Society is a
charitable Educational Society founded by a few good people and followers of
His Holiness Swami Dayanand Saraswati to spread his teachings and Principals of
Arya Samaj including Mahatma Hasraj and Master Sewaram. At present, they are
managing about 700 educational institutions throughout India. The defendant
which is a school situated in Chennai in the State of Tamil Nadu without the
consent and approval of the plaintiff dishonestly and with mala fide intention
to earn goodwill and reputation of the plaintiff-society, started running an
educational institution under the name and style DAV by infringing the
registered trade mark and passing off the copy right of the plaintiff-society
by using its acronym DAV in the similar/deceptively similar manner as of the
plaintiff.
4.
Heard Mr. Mukul Rohatgi, learned senior counsel for the
petitioners in T.P. (C) Nos. 1233-1237 of 2008 and 243-244 of 2009, Ms. Gladys
Daniel, learned counsel for 4 petitioner in T.P. (C) No. 667 of 2009 and Mr.
Ranjit Kumar, learned senior counsel for the respondent- Committee.
5.
The petitioners have filed these petitions praying to transfer the
suits filed by the respondent-Committee pending before Tis Hazari Courts, Delhi
to the City Civil Court, Chennai, Tamil Nadu on the following grounds:
(i) That
no cause of action has arisen at Delhi;
(ii) That
the petitioners do not have any school at Delhi;
(iii)
That there are large number of students studying in these schools who have been
made defendants by the Committee in the suits filed at Delhi and all of them
are in Chennai;
(iv) The
Secretary of the Society since the very inception, Mr. S. Jaidev, who is of the
age of 84 years and being very old, it is difficult for him to come to Delhi.
(v) Most
of the witnesses to be examined on the side of the petitioners/defendants are
in Tamil Nadu and they are conversant with the language of Tamil only. Likewise
most of the documents are in Tamil and it is difficult to mark the same in the
proceedings at Delhi.
(vi) The
petitioner in Transfer Petition No. 667 of 2009 also contended that the person
who is managing the affairs of their society is aged about 71 years and it is
difficult for him to attend the hearing at Delhi.
1.
2.
3.
4.
5.
6.
The respondent-Committee, while denying all the claims of the
petitioners, highlighted that in view of the fact that about 700 institutions
have been spread all over India if the suits filed at Delhi are transferred to
Chennai as claimed, there is likelihood of similar petitions by others
particularly from other States and as on date 50 other suits are pending in
different States. It is also 6 stated that the President who is running the
Trust at Delhi is aged about 95 years. It is also contended that considering
the relief prayed for and the suits having been filed under Section 134 of the Trade Marks Act, 1999 on the jurisdiction point the Court at Delhi alone is
competent to try the same. The allegation relating to inconvenience due to
language is applicable to the respondent also and prayed for dismissal of all
the transfer petitions.
7.
In order to appreciate the rival contentions, it is useful to
refer Section 25 of the Civil Procedure Code which gives power to this Court to
transfer suits etc.
which
reads thus:
"25.
Power of Supreme Court to transfer suits, etc. - (1) On the application of a
party, and after notice to the parties, and after hearing such of them as
desire to be heard, the Supreme Court may, at any stage, if satisfied that an
order under this section is expedient for the ends of justice, direct that any
suit, appeal or other proceeding be transferred from a High Court or other
Civil Court in one State to a High Court or other Civil Court in any other
State."
1.
2.
3.
4.
5.
6.
7.
8.
Transfer of suits under Sections 24 and 25 have been considered by
this Court in various decisions. In Maneka Sanjay Gandhi v. Rani Jethmalani,
(1979) 4 SCC 167, this Court stated: (SCC p. 169, para 2) "2. Assurance of
a fair trial is the first imperative of the dispensation of justice and the
central criterion for the court to consider when a motion for transfer is made
is not the hypersensitivity or relative convenience of a party or easy
availability of legal services or like mini grievances. Something more
substantial, more compelling, more imperilling, from the point of view of
public justice and its attendant environment, is necessitous if the Court is to
exercise its power of transfer. This is the cardinal principle although the
circumstances may be myriad and vary from case to case." (Emphasis
supplied) 9) Similarly in Subramaniam Swamy (Dr.) V. Ramakrishna Hegde, (1990)
1 SCC 4 dealing with power of this Court to transfer a case under Section 25 of
the Code, A.M. Ahmadi, J. (as His Lordship then was) stated:
(SCC p.
9, para 8) "8. Under the old section the State Government was empowered to
transfer a suit, appeal or other proceeding pending in the High Court of that
State to any other High Court on receipt of a report from the Judge trying or
hearing the suit that there existed reasonable grounds for such transfer
provided that the State Government of the State in which the other High Court
had its principal seat consented to the transfer.
The
present Section 25 confers the power of transfer on 8 the Supreme Court and is
of wider amplitude. Under the present provision the Supreme Court is empowered
at any stage to transfer any suit, appeal or other proceeding from a High Court
or other civil court in one State to a High Court or other civil court of
another State if it is satisfied that such an order is expedient for the ends
of justice. The cardinal principle for the exercise of power under this section
is that the ends of justice demand the transfer of the suit, appeal or other
proceeding. The question of expediency would depend on the facts and
circumstances of each case but the paramount consideration for the exercise of
power must be to meet the ends of justice. It is true that if more than one
court has jurisdiction under the Code to try the suit, the plaintiff as dominus
litis has a right to choose the court and the defendant cannot demand that the
suit be tried in any particular court convenient to him. The mere convenience
of the parties or any one of them may not be enough for the exercise of power
but it must also be shown that trial in the chosen forum will result in denial
of justice. Cases are not unknown where a party seeking justice chooses a forum
most inconvenient to the adversary with a view to depriving that party of a
fair trial. Parliament has, therefore, invested this Court with the discretion
to transfer the case from one court to another if that is considered expedient
to meet the ends of justice. Words of wide amplitude--for the ends of
justice--have been advisedly used to leave the matter to the discretion of the
Apex Court as it is not possible to conceive of all situations requiring or
justifying the exercise of power. But the paramount consideration must be to
see that justice according to law is done; if for achieving that objective the
transfer of the case is imperative, there should be no hesitation to transfer
the case even if it is likely to cause some inconvenience to the plaintiff. The
petitioner's plea for the transfer of the case must be tested on this
touchstone." (Emphasis supplied) 10) In Kulwinder Kaur alias Kulwinder
Gurcharan Singh vs. Kandi Friends Education Trust and Others, (2008) 3 SCC 659,
this Court considered various tests to be applied in respect of transfer of
suits under Sections 24 and 25 of the Code and in para 23 observed thus:
23.
Reading Sections 24 and 25 of the Code together and keeping in view various
judicial pronouncements, certain broad propositions as to what may constitute a
ground for transfer have been laid down by courts. They are balance of
convenience or inconvenience to the plaintiff or the defendant or witnesses;
convenience or inconvenience of a particular place of trial having regard to
the nature of evidence on the points involved in the suit; issues raised by the
parties; reasonable apprehension in the mind of the litigant that he might not
get justice in the court in which the suit is pending;
important
questions of law involved or a considerable section of public interested in the
litigation; "interest of justice" demanding for transfer of suit,
appeal or other proceeding, etc. Above are some of the instances which are
germane in considering the question of transfer of a suit, appeal or other
proceeding. They are, however, illustrative in nature and by no means be
treated as exhaustive. If on the above or other relevant considerations, the
court feels that the plaintiff or the defendant is not likely to have a
"fair trial" in the court from which he seeks to transfer a case, it
is not only the power, but the duty of the court to make such order.
11)
Section 25 of the Code itself makes it clear that if any application is made
for transfer, after notice to the parties, if the Court is satisfied that an
order of transfer is expedient for the ends of justice necessary direction may
be issued for transfer of any suit, appeal or other proceedings from a High
Court or other Civil Court in one State to another High Court or other Civil
Court in any other State. In order to maintain fair trial, this Court can
exercise this power and transfer the proceedings to an 10 appropriate Court.
The mere convenience of the parties may not be enough for the exercise of power
but it must also be shown that trial in the chosen forum will result in denial
of justice. Further illustrations are, balance of convenience or inconvenience
to the plaintiff or the defendant or witnesses and reasonable apprehension in
the mind of the litigant that he might not get justice in the Court in which
suit is pending. The above-mentioned instances are only illustrative in nature.
In the interest of justice and to adherence of fair trial, this Court exercises
its discretion and order transfer in a suit or appeal or other proceedings.
12) In
the light of the above principles, let us consider the claim of the parties. We
have already referred to the fact that the respondent-Committee has instituted
various suits at Delhi under Section 134 of the Trade Marks Act impleading the petitioners herein as defendants. The respondent has
also pointed out that more than 50 suits 11 have been pending all over India.
Though the petitioners have raised the problem of distance, language and age of
the President/Secretary of their respective Trust, we are of the view that same
hurdles are applicable to the respondent also if their suits are being
transferred outside Delhi. It is true that the petitioners who are defendants
in order to defend their case necessarily have to spend some time at Delhi.
However, in view of the amendment made in the Code of Civil Procedure in
respect of recording evidence and of the fact that Delhi being a Capital of
this country and the petitioners who are running educational institutions have
to visit this place for their official work, we are satisfied that balance of
convenience and all other attended circumstances are not in favour of the
petitioners transferring the suit to their place. As rightly pointed out by
learned senior counsel for the respondent, if the request of the petitioners
are acceded to, taking note of the fact that their institutions numbering more
than 700 have been spread over India and 50 other suits are 12 pending in
various places, it would be more difficult for the respondent/plaintiff to
continue with their suits and in that event their sufferings would be more than
the inconvenience to be caused by the petitioners/defendants.
13) We
are also satisfied that it would be far more practical and in the best interest
of the parties that the proceedings are conducted in Delhi. Further, if the
petitioners' claim is accepted, it would open floodgates for similarly placed
persons infringing registered trademarks to approach this Court to transfer
their suits to the locations convenient to themselves all over India and defeat
the purpose of Section 134 of the Trade Marks Act
which confers a jurisdiction with respect to a registered trade mark. Since the
issue relating to jurisdiction particularly whether Court at Delhi has
jurisdiction or not is to be decided by the Trial Court, we are not expressing
anything on the merits of their claims.
14) In
the light of what has been stated above, we do not find any valid ground for
transfer of the suits as claimed by the petitioners. Consequently, all the
transfer petitions are dismissed. However, we make it clear that we have not
expressed anything on the merits of either parties and it is for them to plead
and establish their respective case.
No order
as to costs.
...........................................J. (P. SATHASIVAM)
..........................................J. (ANIL R. DAVE)
NEW DELHI;
JULY 23, 2010.
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