//
you're reading...
CHEQUE BOUNS CASE

“The Rule of “Forum conveniens” is an equitable rule embracing the discretionary power of a Court to decline exercise of jurisdiction, which it has over a transitory cause of action, when it believes that the action may more appropriately and justly be tried elsewhere. In cases where jurisdiction has been founded as of right, as before the High Court where the cause of action in part arises, the respondents may apply to the court to exercise its discretion and refuse to entertain the writ petition on the ground of “Forum Conveniens”. The object is to find that forum which is the more suitable and preferable because pursuit of the litigation in that forum is more likely to secure the ends of justice. The court, before which such a request is made, must be satisfied that the other available forum, having competent jurisdiction, is the appropriate forum in which the case may be tried more suitably keeping in view the interests of all the parties and to secure the ends of justice.”

THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B.LOKUR AND THE HON’BLE SHRI

Hight court of the state of Andhra pradesh loc...

Hight court of the state of Andhra pradesh located at hyderabad. self-photographed. (Photo credit: Wikipedia)

JUSTICE

WA NOS.651 OF 2010, 537 OF 2011 & 539 OF 2011 AND WP NO.27663 OF 2010

24-01-2012

Nuziveedu Seeds Pvt. Ltd.,Rep. by its Dy.General Manager,
Mr.S.Sartaj Mohammed Khan.

Protection of Plant Variety & Farmers’Rights Authority, The Registrar, National
Academy of Agricultural Sciences,(N.A.S.C.Complex), Opp. Village Todapur, DPS
Marg, New Delhi – 110 012 and others.

Counsel for appellant/petitioner : Sri S.Niranjan Reddy

Counsel for respondents : Sri Ponnam Ashok Goud,
Assistant Solicitor General
for India,
Sri C.V.Mohan Reddy,
Senior Advocate for
Sri Lakshmikumaran &
Sri Sridharan.
? CASES REFERRED:
1) (1979) 118 ITR 917 (AP)
2) (1990) 1 SCC 328
3) (2000) 7 SCC 640
4) (2002) 1 SCC 567
5) (2004) 6 SCC 254
6) (2007) 11 SCC 335
7) (2010) 2 SCC 535
8) (2006) 6 SCC 207
9) (2007) 6 SCC 769
10) (1993) 5 Sac LJ 1.
11) 1987 (1) AC 460
12) (2006) UKHL 47
13) AIR 2011 DELHI 174
14) 1926 S.C. (H.L.) 13
15) 164 (2009) DLT 539 DB
16) 19 R. 665, 668.
17) 2006 (6) ALT 593

COMMON JUDGMENT
(Per Sri Justice Sanjay Kumar)
The Writ Appeals on hand turn upon the maintainability of the writ
petitions filed by Nuziveedu Seeds Pvt. Ltd., the appellant company. Two learned
Judges of this Court separately held against the appellant company and dismissed
its three writ petitions on the ground of territorial jurisdiction. The fate of
Writ Petition No.27663 of 2010, subsequently filed by the appellant company,
would depend upon our decision in the appeals.
These cases arise against the backdrop of The Protection of Plant
Varieties and Farmers’ Rights Act, 2001 (for brevity, ‘the Act’). This
legislation was promulgated by the Parliament for protecting the intellectual
property rights of plant breeders and farmers over plant varieties developed by
them. The scheme of the Act provides for the authority constituted thereunder,
viz., the Protection of Plant Varieties and Farmers’ Rights Authority
(hereinafter, ‘the competent authority’) to entertain and process applications
from plant breeders, farmers or persons claiming through them for registration
of the plant varieties over which rights are sought to be asserted. The Act and
the Rules framed thereunder enunciate the detailed procedure to be followed by
the competent authority in the context of the tests to be conducted in respect
of such plant varieties; for advertisement of the applications for inviting
objections from persons interested in the proposed registration of the
advertised varieties; and the steps to be taken thereafter. Registration of a
plant variety confers exclusive rights on the breeder/farmer to produce, sell,
market, distribute, import or export such variety. Infringement of such rights
and the offences, penalties and the procedure to be followed in the context
thereof are also detailed in the Act.
Maharashtra Hybrid Seeds Co. Ltd. (hereinafter, ‘the respondent Company’)
filed applications under the provisions of the Act for registration of its
cotton varieties. The competent authority published the advertisement of the
applications in respect of the respondent company’s cotton varieties – C-5193
and C-5196 in its Plant Variety Journal dated 01.09.2008 calling for objections
from interested persons. Three months being the prescribed period for submitting
objections, the last date was 31.12.2008. The appellant company admittedly filed
its objections after this date. However, the competent authority, in the first
instance, condoned the delay in filing of the objections by order dated
11.06.2009 and entertained the same.
Aggrieved thereby, the respondent company approached the High Court of Delhi by
way of Writ Petition (Civil) Nos.10938 and 10939 of 2009. By common order dated
03.11.2009, the High Court of Delhi set aside the competent authority’s order
dated 11.06.2009 and remanded the matter for fresh consideration. Thereupon, the
competent authority passed order dated 09.03.2010 allowing extension of time for
filing of objections in the case of the respondent company’s C-5193 cotton
variety but refusing to condone the delay in the filing of objections as regards
its C-5196 cotton variety.
Writ Petition No.8031 of 2010 was filed by the appellant company before this
Court assailing the refusal by the competent authority to condone the delay in
the filing of its objections and seeking a consequential direction to the
competent authority to consider its opposition to the respondent company’s
application for registration of its C-5196 cotton variety. As regards the order
passed in favour of the appellant company apropos the respondent company’s C-
5193 cotton variety, the respondent company once again approached the High Court
of Delhi by way of Writ Petition No.4527 of 2010. This writ petition is stated
to be pending.
While so, the appellant company filed Writ Petition No.16892 of 2010 before this
Court assailing the action of the competent authority and the Union of India in
not implementing the provisions of the Act in terms of conducting proper tests
of the plant varieties sought to be registered and causing publication of
advertisements as per the prescribed format. The respondent company which was
originally not a party to this writ petition got itself impleaded thereafter.
The subsequent advertisement of the respondent company’s applications for
registering nine of its hybrid plant varieties provoked the appellant company to
file Writ Petition No.20326 of 2010 before this Court. Therein, it challenged
the said advertisement on the ground that it was in violation of the procedure
prescribed under the Act and the Rules framed thereunder and sought a
consequential direction to the competent authority to cause proper advertisement
in accordance with the Act and the Rules.
A learned Judge of this Court dismissed Writ Petition No.8031 of 2010 by his
order dated 23.08.2010 holding that this Court had no territorial jurisdiction
to issue a writ of certiorari quashing the competent authority’s order dated
09.03.2010 as the said authority was not situated within its jurisdiction.
Aggrieved thereby, the appellant company filed Writ Appeal No.651 of 2010.
By common order dated 01.07.2011, another learned Judge dismissed Writ
Petition Nos.16892 and 20326 of 2010 opining that this Court had no territorial
jurisdiction to entertain the said writ petitions as no part of the cause of
action arose within the State of Andhra Pradesh. Challenging the same, the
appellant company filed Writ Appeal Nos.537 and 539 of 2011 respectively.
In the meanwhile, the appellant company filed Writ Petition No.27663 of
2010 before this Court posing a challenge to the advertisement in respect of the
respondent company’s C-5193 and C-5196 cotton varieties in the competent
authority’s journal dated 01.09.2008 on the ground that the same was not in
accordance with the prescribed norms.
Needless to state, the appellant company cannot seek adjudication of this
writ petition on merits unless it succeeds in the appeals filed against the
orders dismissing its earlier writ petitions on the ground of maintainability.
By interim order dated 21.10.2010 in Writ Appeal No.651 of 2010 and
interim order dated 25.07.2011 in Writ Appeal No.539 of 2011, this Court
permitted the competent authority to proceed on the applications for
registration filed by the respondent company but restrained it from passing
final orders.
As pointed out by a Division Bench of this Court in KAKUNURU VENKATA REDDY
V/s. COMMISSIONER OF INCOME-TAX1, objections as to maintainability based on
territorial jurisdiction should be decided at the inception. Certain factual
aspects crucial for determination of this preliminary issue may be noticed. The
Plant Variety Journal published by the competent authority has circulation
through out the country, including the State of Andhra Pradesh. Though the
appellant company asserts that it subscribes to the said Journal and receives
the same at its Hyderabad Office, no material is placed on record to
substantiate the same. The respondent company has its Registered Office at
Mumbai and its applications for registration of its plant varieties were filed
in New Delhi where the competent authority has its Head Office. No Branch
Offices of the competent authority are operative anywhere else as yet. The
appellant company, at the relevant point of time, had its Registered Office at
New Delhi. It filed its objections before the competent authority through its
Legal Advisers at New Delhi indicating their address at New Delhi for further
correspondence even though its Corporate Office was situated in the State of
Andhra Pradesh, where it has substantial business interests and operations.
The power of this Court to issue the prerogative writs of mandamus and
certiorari, amongst others, is relatable to Article 226 of the Constitution
which, to the extent relevant, reads as under:
“226. Power of High Courts to issue certain writs:- (1) Notwithstanding anything
in Article 32 every High Court shall have powers, throughout the territories in
relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including (writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of
them, for the enforcement of any of the rights conferred by Part III and for any
other purpose.)
(2) The power conferred by clause (1) to issue directions, orders or writs to
any Government, authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of
action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or authority or the residence
of such person is not within those territories.”

The issue presently is whether the cause of action in these cases arose,
wholly or in part, within the territories of the State of Andhra Pradesh whereby
this Court could exercise jurisdiction in the matter under Article 226(2) of the
Constitution.
The learned Judge while dismissing Writ Petition Nos.16892 and 20326 of
2010 thought not. The learned Judge, who dismissed Writ Petition No.8031 of 2010
earlier, was of the opinion that a writ of certiorari could not be issued
against the competent authority as it was not situated within the territories of
the State.
A writ petition would be maintainable for seeking even pre-violation
protection, once the petitioner establishes the threatened or imminent violation
of his rights [S.M.D. KIRAN PASHA V/s. GOVERNMENT OF ANDHRA PRADESH2]. The
question however is whether the appellant company’s perceived threat to its
rights, in other words – the cause of action, is relatable to or arose within
the territories of the State.
In legal parlance the expression ’cause of action’ is generally understood
to mean a situation or state of facts that entitles a party to maintain an
action in a Court or a Tribunal; a group of operative facts giving rise to one
or more basis for suing; a factual situation that entitles one person to obtain
a remedy in Court from another person. Article 226(2) confers power on the High
Courts to exercise jurisdiction in relation to the territories within which the
cause of action, wholly or in part, arises and it is no matter that the seat of
the authority concerned is outside the territorial limits of the jurisdiction of
that High Court [NAVINCHANDRA N.MAJITHIA V/s. STATE OF MAHARASHTRA3].
Each and every fact pleaded in an application does not ipso facto lead to
the conclusion that those facts give rise to a cause of action within the
Court’s territorial jurisdiction unless those facts pleaded are such which have
a nexus or relevance with the lis that is involved in the case [UNION OF INDIA
v. ADANI EXPORTS LTD.4].
The Supreme Court in KUSUM INGOTS & ALLOYS LTD. V/s. UNION OF INDIA5 held
that it was indisputable that even if a small fraction of the cause of action
accrued within its territorial jurisdiction, the High Court would have
jurisdiction in the matter under Article 226(2). It was however pointed out that
when an order is passed by an authority, whether under the provisions of a
statute or otherwise, at a particular place a part of the cause of action arises
at that place.
In ALCHEMIST LTD. V/s. STATE BANK OF SIKKIM6, the Supreme Court reiterated
thus:
“37. From the aforesaid discussion and keeping in view the ratio laid down in a
catena of decisions by this Court, it is clear that for the purpose of deciding
whether facts averred by the appellant-petitioner would or would not constitute
a part of cause of action, one has to consider whether such fact constitutes a
material, essential, or integral part of the cause of action. It is no doubt
true that even if a small fraction of the cause of action arises within the
jurisdiction of the court, the court would have territorial jurisdiction to
entertain the suit/petition. Nevertheless it must be a “part of cause of
action”, nothing less than that.”

In the present case, though the appellant company cites it as a relevant
factor for establishing the jurisdiction of this Court, the mere circulation of
the Journal published by the competent authority within the State of Andhra
Pradesh would not, by itself, be determinative of the jurisdiction of this Court
under Article 226(2) of the Constitution. There are other factors that need to
be considered.
It cannot be gainsaid that the entire process from its inception, by submission
of an application for registration, upto the issuance of a certificate of
registration is a comprehensive one and the invitation and submission of
objections to the proposed registration is an integral part of this exercise.
The effects of such registration in terms of the exclusive rights enuring to the
beneficiary thereof and the concomitant adversities which are visited upon those
who are perceived to have infringed such rights form part and parcel of this
package.
It is not in dispute that the competent authority has its Head Office at New
Delhi and Branch Offices have not been established elsewhere till date. In terms
of Rule 4(2) of the Rules framed under the Act, until such Branch Offices are
established, the appropriate office for all proceedings under the Act is the
Head Office of the competent authority at New Delhi.
The effect of the registrations made by the competent authority at New Delhi
would however be felt all over the country. It would therefore be far-fetched to
say that owing to the situs of the Head Office of the competent authority at New
Delhi, the High Court of Delhi alone would have jurisdiction in such matters.
When the fallout of the activities of the competent authority at New Delhi are
felt throughout the country, it would negate the very purport and purpose of
Article 226(2) of the Constitution to say that a person so impacted must move
only the High Court of Delhi. As has been pointed out by the Supreme Court time
and again, even if a fraction of the cause of action arises within its
territories, the High Court of that State would be vested with the jurisdiction
to entertain a writ petition.
It is also to be remembered that not only prosperous plant breeders but also
individual farmers, who assert intellectual property rights over their plant
varieties, are entitled to protection under the Act. Such a farmer, upon gaining
information of the proposal to register a particular plant variety akin to his
extant variety and being situated in a distant or remote place, would be
entitled to submit his objections thereto from such place. The Act vests him
with the right to receive full information of the plant variety sought to be
registered and also have his objections thereto considered in accordance with
the prescribed procedure. Any violation of such procedure by the competent
authority would inevitably give rise to a cause of action to such farmer not
only at the place where the competent authority fails to abide by the statutory
mandate, but also where he suffers the effect of such failure.
At this stage, it may be relevant to refer to the Judgment of the Supreme
Court in GODREJ SARA LEE LIMITED V/s. RECKITT BENCKISER AUSTRALIA PTY. LTD.7.
Therein, the Supreme Court observed on facts that the cause of action arose upon
the cancellation of the registered design of the appellant in the State of West
Bengal and held that the Delhi High Court had no jurisdiction in the matter on
account of the impact of such cancellation being felt within its territories.
Unlike GODREJ SARA LEE LIMITED7, in the present case it is not the
registration of the plant variety per se which gives rise to the cause of action
but the failure in the decision making process and the consequent violation of
the statutory right, be it by improper advertisement falling short of the full
and required information and/or improper consideration of objections.
In order to maintain a writ petition, the petitioner only has to establish
that the legal right claimed by him has prima facie either been infringed or is
threatened to be infringed by the respondent within the territorial limits of
the Court’s jurisdiction and such infringement may take place by causing him
actual injury or threat thereof [OM PRAKASH SRIVASTAVA V/s. UNION OF INDIA8].
Thus, the settled legal position is that not only violation but even a
threatened violation of a right would be sufficient cause for invocation of a
legal remedy. A farmer or a breeder therefore need not wait till the competent
authority completes the registration of a plant variety in violation of his
rights before approaching the competent Court. The threat posed by the impending
registration contrary to the prescribed procedure under the Act would be enough
to constitute a redressable cause of action. To that extent, we are unable to
agree with the opinion expressed (in Writ Petition Nos.16892 and 20326 of 2010)
that it would be only after the registration of the respondent company’s
varieties takes place that the threat of violation of the appellant company’s
right may arise.
Threatened violation of a right would have to be examined on facts and such
threats cannot always be termed to be mere apprehensions. When the consequences
of the registration of a plant variety are explicitly spelt out by the Act and
the Rules framed thereunder and the objector to such registration, who is
clothed with the statutory right of access to full data of the plant variety to
be registered and of having his objections considered in the manner prescribed
therein, alleges and asserts violation of such procedural safeguards, the threat
posed to his rights transgresses the realm of mere apprehensions and assumes
realistic proportions. Ergo, given the ubiquitous and far reaching effects of
the activities of the competent authority in exercise of its functions and the
fetters placed thereon under the Act and the Rules framed thereunder, we are
unable to agree with the learned single Judge that no part of the cause of
action arose within the territories of this State. The very purpose of Article
226(2) of the Constitution being to enlarge the jurisdiction of the High Courts,
a narrow and pedantic approach is not to be adopted in its application.
We are also unable to agree with the opinion of the learned Judge in Writ
Petition No.8031 of 2010 that a writ of certiorari cannot be issued by this
Court to the competent authority as it is not situated within its territories.
This approach runs contra to the very language of Article 226(2) of the
Constitution and the observations of the Supreme Court in NAVINCHANDRA
N.MAJITHIA3. The writ petitions therefore cannot be said to be not maintainable
before this Court for want of territorial jurisdiction.
That being said, we hasten to add that the matter need not and, in fact, does
not end there. As pointed out by the Supreme Court in KUSUM INGOTS & ALLOYS
LTD.5 even if this Court has territorial jurisdiction, it may not be enough to
compel it to adjudicate the matter on merits. In AMBICA INDUSTRIES V/s.
COMMISSIONER OF CENTRAL EXCISE9, the Supreme Court pointed out that though the
Court may have jurisdiction in the matter even if a small fraction of the cause
of action accrues within its jurisdiction, the doctrine of forum conveniens may
also have to be considered.
It is within the power of this Court to refuse to exercise its discretionary
jurisdiction under Article 226 of the Constitution by invoking the doctrines of
‘forum conveniens’ or alternately ‘forum non conveniens’. This Scottish
principle is now of universal application and is firmly embedded in our Indian
jurisprudence.
Black’s Law Dictionary (9th Edition) defines ‘Forum Conveniens’ and ‘Forum
Non Conveniens’ as under:
“Forum conveniens” [Latin “a suitable forum”]
The Court in which an action is most appropriately brought, considering the best
interests and convenience of the parties and witnesses.

“Forum non conveniens” [Latin “an unsuitable court”]
The doctrine that an appropriate forum – even though competent under the law –
may divest itself of jurisdiction if, for the convenience of the litigants and
the witnesses, it appears that the action should proceed in another forum in
which the action might also have been properly brought in the first place.

The Latin tag ‘forum non conveniens’ is used to describe the principle
that notwithstanding that an action has been properly brought before the Court,
the Court has the power to stay the action as there exists another available
forum having competent jurisdiction which is clearly and distinctly more
appropriate to hear and determine the claim in respect of which the action was
brought within the jurisdiction (David Chong Gek Sian, Senior Lecturer, Faculty
of Law, National University of Singapore, in his paper on ‘Forum Conveniens’10.
‘Forum non conveniens’ allows a Court to exercise its discretion to avoid the
oppression or vexation that might result from automatically honoring plaintiff’s
forum choice. However, dismissal on the basis of ‘forum non conveniens’ also
requires that there be an alternative forum in which the suit can be prosecuted.
It must appear that jurisdiction over all parties can be secured and that
complete relief can be obtained in the supposedly more convenient Court.
Further, ……… it has been held that the doctrine cannot be successfully
invoked when the plaintiff is resident of the forum state since, effectively,
one of the functions of the state Courts is to provide a tribunal in which their
residents can obtain an adjudication of their grievances. But in most instances
a balancing of the convenience to all the parties will be considered and no one
factor will preclude a ‘forum non conveniens’ dismissal, as long as another
forum is available.” [JACK H. FRIEDENTHAL et al., Civil Procedure $ 2.17, at 87-
88 (2d ed. 1993)].
In SPILIADA MARITIME CORPN. V/s. CANSULEX LTD.11, the House of Lords explained
the ambit of the principle ‘forum non conveniens’ for issuing an order of stay:
“(1) The fundamental principle applicable to both the stay of English
proceedings on the ground that some other forum was the appropriate forum and
also the grant of leave to serve proceedings out of the jurisdiction was that
the court would choose that forum in which the case could be tried more suitably
for the interests of all the parties and for the ends of justice………
(2) ……… In considering whether there was another forum which was more
appropriate the court would look for that forum with which the action had the
most real and substantial connection e.g. in terms of convenience or expense,
availability of witnesses, the law governing the relevant transaction, and the
places where the parties resided or carried on business. If the court concluded
that there was no other available forum which was more appropriate than the
English Court it would normally refuse a stay. If, however, the court concluded
that there was another forum which was prima facie more appropriate the court
would normally grant a stay unless there were circumstances militating against a
stay e.g. if the plaintiff would not obtain justice in the foreign
jurisdiction………”

In TEHRANI V/s. SECRETARY OF STATE FOR THE HOME DEPARTMENT12, the House of
Lords observed: ‘the doctrine of forum non-conveniens’ is a good example of a
reason, established by judicial authority, why a Court should not exercise the
jurisdiction that (in the strict sense) it possesses. Issues of forum non-
conveniens do not arise unless there are competing Courts each of which has
jurisdiction (in the strict sense), to deal with the subject matter of the
dispute. It seems to be plain that if one of the two competing Courts lacks
jurisdiction (in the strict sense), a plea of forum of convenience could never
be a bar to the exercise by the other Court of its jurisdiction.
A larger bench of five learned Judges of the High Court of Delhi in STERLING
AGRO INDUSTRIES LTD. ETC. V/s. UNION OF INDIA13 observed:
“31. The concept of forum conveniens fundamentally means that it is obligatory
on the part of the court to see the convenience of all the parties before it.
The convenience in its ambit and sweep would include the existence of a more
appropriate forum, expenses involved, the law relating to the lis, verification
of certain facts which are necessitous for just adjudication of the controversy
and such other ancillary aspects. The balance of convenience is also to be taken
note of. ………

32. The principle of forum conveniens in its ambit and sweep encapsulates the
concept that a cause of action arising within the jurisdiction of the Court
would not itself constitute the determining factor compelling the Court to
entertain the matter. While exercising jurisdiction under Articles 226 and 227
of the Constitution of India, the Court cannot be totally oblivious of the
concept of forum conveniens. ………”

Interesting to note, Lord Sumner of the House of Lords in La Societe Du Gaz de
Paris V/s. La Societe Anonyme de Navigation “Les Armateurs Francais”14 observed:
“I feel bound to say that I doubt whether the Latin tag ‘forum non conveniens’
is apt to describe this principle. For the question is not one of ‘convenience’,
but of the ‘suitability or appropriateness’ of the relevant jurisdiction.”

This Court in KAKUNURI VENKATA REDDY1 also observed to the same effect when it
said that the word ‘conveniens’ in Scottish Law was not the same as the regular
‘convenience’ in English.
However, as pointed out by the High Court of Delhi in HORLICKS LTD. V/s. HEINZ
INDIA (PVT.) LIMITED15, the Latin tag (sometimes expressed as ‘forum non
conveniens’ and sometimes as ‘forum conveniens’) is so widely used to describe
the principle, not only in England and Scotland, but in other Commonwealth
jurisdictions and in the United States, that it is probably sensible to retain
it. But it is most important not to allow it to mislead us into thinking that
the question at issue is one of “mere practical convenience.” Such a suggestion
was emphatically rejected by Lord Kinnear in SIM V/s. ROBINOW16 and by Lord
Dunedin, Lord Shaw of Dunfermline and Lord Sumner in the La Societe du Gaz case.
Lord Sumner further stated: ‘The object behind the words ‘forum non conveniens’
is to find that forum which is the more suitable for the ends of justice, and is
preferable because pursuit of the litigation in that forum is more likely to
secure those ends.’ Lord Dunedin, with reference to the expressions ‘forum non
competens’ and ‘forum non conveniens’, said: ‘in my view, ‘competent’ is just as
bad a translation for ‘competens’ as ‘convenient’ is for ‘conveniens.’ The
proper translation for these Latin words, so far as this plea is concerned, is
‘appropriate’.
In P.S.R. KRISHNA V/s. UNION OF INDIA17, a Division Bench of this Court pointed
out that the test to determine the territorial jurisdiction of the High Court
was not the location of the Authority/ Tribunal or the residence of the person
to whom the writ is to be issued or even the seat of the Government but whether
the “cause of action, either wholly or in part”, has arisen within its
territorial limits. Dealing with the principle of ‘forum conveniens’ the Bench
observed:
“The Rule of “Forum conveniens” is an equitable rule embracing the discretionary
power of a Court to decline exercise of jurisdiction, which it has over a
transitory cause of action, when it believes that the action may more
appropriately and justly be tried elsewhere. In cases where jurisdiction has
been founded as of right, as before the High Court where the cause of action in
part arises, the respondents may apply to the court to exercise its discretion
and refuse to entertain the writ petition on the ground of “Forum Conveniens”.
The object is to find that forum which is the more suitable and preferable
because pursuit of the litigation in that forum is more likely to secure the
ends of justice. The court, before which such a request is made, must be
satisfied that the other available forum, having competent jurisdiction, is the
appropriate forum in which the case may be tried more suitably keeping in view
the interests of all the parties and to secure the ends of justice.”

In the present case, it is an admitted fact that the appellant company had its
Registered Office at New Delhi at the relevant time. It may be noted that under
Section 10 of the Companies Act, 1956, the Registered Office of a company
incorporated under the said Act would determine the High Court which would have
jurisdiction for the purposes of that Act. Further, the appellant company
submitted its objections to the competent authority through its Legal Advisers
at New Delhi. It wanted further correspondence in that regard to be addressed by
the competent authority to its Legal Advisers at New Delhi. It however asserts
that this Court has jurisdiction in the matter because the competent authority’s
Journal has circulation in Andhra Pradesh and the impact of the registration of
the respondent company’s varieties would be felt by it in this State, amongst
others, as it has substantial business interests here. The latter facts may have
independently weighed in its favour but for the former, narrated supra.
That apart, the fact that the High Court of Delhi is already seized of the
matter cannot be ignored. Pertinent to note, the very advertisement which forms
the basis for the case pending before the High Court of Delhi is now sought to
be challenged by the appellant company before this Court in Writ Petition
No.27663 of 2010. There is thus a possibility of contradictory views being
expressed owing to simultaneous and parallel exercise of jurisdiction by both
the competent Courts. It has also to be kept in mind that the appellant company
was well aware that the High Court of Delhi had already exercised jurisdiction
in the earlier round of litigation in Writ Petition Nos.10938 and 10939 of 2009.
The subsequent orders of the competent authority resulting from that
adjudication led to the filing of two writ petitions – one by the appellant
company before this Court (Writ Petition No.8031 of 2010) and the other by the
respondent company before the High Court of Delhi (Writ Petition No.4527 of
2010). This multiplicity of proceedings before different High Courts on the same
issue grounded on common facts is neither proper nor desirable. Merely because a
part of the cause of action may be relatable to the territories of the State of
Andhra Pradesh, that by itself would not compel this Court to entertain these
cases. As the appellant company had its Registered Office at New Delhi; it
transacted with the competent authority through its legal advisers at New Delhi;
and given the fact that the High Court of Delhi already exercised jurisdiction
in the matter earlier and is again seized of one of the offshoots of this
litigation, there can be no doubt that it is the more appropriate forum to
decide the issues sought to be raised by the appellant company.
We therefore hold that this Court has territorial jurisdiction in the matter but
nevertheless we refuse to entertain these cases applying the principle of ‘forum
non conveniens’. The Writ Appeals and the Writ Petition are accordingly
dismissed. Interim orders shall stand vacated. Parties shall bear their own
costs.

——————————–
MADAN B.LOKUR, CJ.
—————————-
SANJAY KUMAR, J.
24TH JANUARY, 2012.

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: