@JUDGMENTTAG-ORDER
1. The respondent urges a preliminary objection as to the maintainability of the present appeals pressing his argument on the basis of his interpretation of the expression ''carries on business'' occurring in Section 72(2) of the Copyright Act, 1957. Briefly, the appellant is aggrieved by an order of the Copyright Board dated 4.4.2011 and has preferred three appeals. At the time of entertainment of these proceedings, liberty was reserved for the appellant to file affidavits and produce such material in support of its assertion that this Court possesses the requisite jurisdiction as was necessary to establish it. The petitioner has relied upon the affidavits of its director Mr. Pranay Kapoor as well as the partners of its agent Mr. Rajesh Sabharwal (of M/s. S.S. Agencies) and Ms. Reena Sabharwal.
2. Learned Senior Counsel for the appellant submits that besides these affidavits, there is other independent material in the form of copies of plaint in C.S. (O.S.) No. 1821/1999 filed against the present respondent, alleging trade mark infringement. Learned Senior Counsel for the appellant also placed reliance on several advertisements placed on record in the said suit ''issued on its behalf by the said M/s. S.S. Agencies from time-to-time at various points of time, i.e. 1998, 2001, 2002, 2006, 2011, etc. in its capacity as the appellant''s agent. It is urged that having regard to these circumstances, the appellant squarely falls within the description of one ''carrying on business'' within the jurisdiction of the Court through its exclusive agent M/s. S.S. Agencies.
3. Learned Counsel for the respondent, who objected to the maintainability of the appeals, placed reliance on the judgment in
4. It is urged further that in another proceedings, i.e. W.P. (C) No. 5883/2008, in the course of trade mark proceedings, where the respondent had occasion to approach this Court in respect of an application advertised in the Trade Marks Gazette, the present appellant -- who was arrayed then as a respondent, claimed in unambiguous terms that it was carrying on business in Mumbai, and that no part of cause of action arose within the jurisdiction of this Court.
5. For a proper and better appreciation of the controversy in issue, it would be relevant to consider Section 72 to the extent it is material. The said provision is extracted below:
72. Appeals against orders of Registrar of Copyrights and Copyright Board--
(1) Any person aggrieved by any final decision or order of the Registrar of Copyrights may, within three months from the date of the order or decision, appeal to the Copyright Board.
(2) Any person aggrieved by any final decision or order of the Copyright Board, not being a decision or order made in an appeal under Sub-section (1), may, within three months from the date of such decision or order, appeal to the High Court within whose jurisdiction the appellant actually and voluntarily resides or carries on business or personally works for gain: to Provided that no such appeal shall lie against a decision of the Copyright Board u/s 6.
6. The material aspect to be considered is as if the appellant carries on business within the jurisdiction of the Court. Before considering the merits of the rival contentions of the parties, it would be worthwhile to notice that although Section 72 is similar to Section 62(2), it differs significantly in that it deals with appellate jurisdiction. Section 62(2) confers a discretion upon the litigant to approach the Court where the cause of action, or a part of it arises, or where he, or it resides, or carries on business; however, that is in respect of an original claim, i.e. in the form of a suit. Here, the appeal preferred to the High Court against an order of the Copyright Board enjoins that the appellant should either be residing, or carrying on business within the jurisdiction of a Court before whom it appeals.
7. In the opinion of this Court, there is sufficient material on record, apart from the affidavits of the appellant''s director and the partners of M/s. S.S. Agencies to establish that it is indeed carrying on business within the jurisdiction of the Court. Even if one were to ignore the affidavits as having been filed at this stage before the Court, there is no getting away from the fact that the suit filed in 1999 not only stated that M/s. S.S. Agencies was an exclusive agent of the appellant, but it was also impleaded as a second plaintiff. Furthermore, the material placed on record in that suit'' filed about 14 years ago (thus having the Odium of a circumstantial evidence) shows that advertisements were issued from time to time by M/s. S.S. Agencies seeking to market the appellant''s products.
8. As far as the submission of the respondent that M/s. S.S. Agencies does not fulfil the description of an exclusive agent based on Dhodha House (supra) is concerned, the Court is unpersuaded with this submission. The exclusivity, in the understanding of this Court is relative to the principal. It is noteworthy that the extract of Dhodha House (supra), which the respondent relied upon, is from Mulla''s textbook on Civil Procedure Code. Translated into today''s market economy, where different and newer models of selling products -- including online sales, are in existence, the requirement that a principal should necessarily nominate a special agent as its exclusive retailer, or distributor, or agent, who is further restricted from selling anything else, is not only commercially unviable but legally impermissible given the mandate of Section 27 of the Contract Act, which prohibits the agreements in restraint of trade. Possibly, prohibition against an agent from selling competing products may be justified, but such restriction cannot apply to other goods, or products. For this reason, this Court rejects the respondent''s contentions in this regard.
9. As far as the argument founded upon the stand of the appellant in the respondent''s writ petition is concerned, the claim there was that the present appellant''s trade mark had not been properly advertised. In the course of those proceedings -- under Article 226 of the Constitution of India, the appellant took the plea that the parties were residing in Mumbai and work for gain there. That cannot impliedly mean that the present appellant did not have any exclusive dealer in Delhi; that aspect stands established by the institution of suit in 1999 and the various advertisements placed on record in the course of that suit.
10. For the above reasons, this Court is of the opinion that the respondent''s contentions with regard to the lack of jurisdiction to entertain the present appeals is truly unfounded. The same is, accordingly, rejected. The respondent shall bear the costs for this hearing quantified at Rs. 25,000/- for each appeal.
RFA Nos. 239-41/2011
11. Arguments heard in part, in the appeals. List on 19.8.2014.
