D.A.V. BOYS SR. SEC. SCHOOL ETC. ETC.versusDAV COLLEGE MANAGING COMMITIEE

                         [2010] 8 S.C.R. 952


A          D.A.V. BOYS SR. SEC. SCHOOL ETC. ETC.
                                  v.
            DAV COLLEGE MANAGING COMMITIEE
       (Transfer Petition (Civil) Nos. 1233-1237 of 2008 etc)

                           JULY 23, 2010
B
            [P. SATHASIVAM AND ANIL R. DAVE, JJ.]

         Code of Civil Procedure, 1908 - s. 25 - Transfer petition
    - Allegations of infringement of registered trade mark against
C   schools run by Chennai based Society - Suits filed by
    respondent-Committee, in District Court in Delhi under s. 134
    of the Trade Marks Act - Defendant-schools filed petition for
    transfer of the suits to civil court in Chennai - Held: The mere
    convenience of the parties may not be enough for the
o   exercise of power but it must also be shown that trial in the
    chosen forum will result in denial of justice - On facts, there
    is no valid ground for transfer of the suits since balance of
    convenience and other attendant circumstances are not in
    favour of the defendant-schools transferring the suits to their
E   place - Trade Marks Act, 1999 - s.134.

        The respondent-Committee obtained a trademark
    registration in respect of the letters "DAV" and
    "Dayanand Anglo Vedic", and issued a notice of "cease
    and desist" to various schools run by the Tamil Nadu
F   Arya Samaj Education Society asking them not to use the
    words "DAV" for their schools. It also filed four suits
    against the said schools under Section 134 of the Trade
    Marks Act, 1999 before the District Court, Tis Hazari,
    Delhi.
G
        The defendant-schools filed transfer petitions before
    the Supreme Court praying for transfer of the said suits
    to City Civil Court, Chennai, Tamil Nadu inter alia on the
    grounds of inconvenience due to distance, language and
H                                952
D.A.V. BOYS SR. SEC. SCHOOL v. DAV COLLEGE 953
            MANAGING COMMITTEE

the old age of the Secretary of the said Tamil Nadu              A
Society.

    Dismissing the ·transfer petitions, the Court

    HELD: 1.1 Mere convenience of the parties may not
be enough for the exercise of power u/s. 25, CPC but it          B
must also be shown that trial in the chosen forum will
result in denial of justice. In the interest of justice and to
adherence of fair trial, this Court exercises its discretion
and orders transfer in a suit or appeal or other
proceedings. [Para 11} [961-E-F}                                 c
    1.2. Section 25, CPC itself makes it clear that if any
application is made for transfer, after notice to the parties,
and if the Court is satisfied that an order of transfer is
expedient for the ends of justice necessary direction may        D
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
                                                                 E
appropriate court. [Para 11] [961-C-E]

     1.3. In the present case, the respondent-Committee
has instituted various suits at Delhi under Section 134 of
the Trade Marks Act, 1999 impleading the petitioners
herein as defendants. The respondent has also pointed            F
out that more than 50 suits 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, the same nurdles are applicable to
the respondent also, if their suits are transferred outside      G
Delhi. [Para 12] [961-G-H; 962-A-B]                  .

    1.4. It is true that the petitioners, who are defendants,
in order to defend their case necessarily have to spend
sometime at Delhi. However, in view of the amendment             H
    954     SUPREME COURT REPORTS                [2010] 8 S.C.R.

A made in the Code of Civil Procedure in respect of
  recording of evidence and of the fact that Delhi being a
  Capital of the country and the petitioners who are
  running educational institutions have to visit this place
  for their official work, balance of convenience and all
B other attendant circumstances are not in favour of the
  petitioners getting transfer of the suits to their place. If the
  request of the petitioners is acceded to, taking note of the
  fact that the institutions of the respondent numbering
  more than 700 are spread over India and 50 other suits
c are 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 to the petitioners/
  defendants. It would be far more practical and in the best
  interest of the parties that the proceedings are conducted
0
  in Delhi. There is no valid ground for transfer of the suits
  as claimed by the petitioners. [Paras 12-14] [962-B-E; 962-
  G; 963-A]

       1.5. If the petitioners' claim is accepted, it would open
E floodgates for similarly placed persons infringing
  registered trade marks 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
F to a registered trade mark. [Para 13] (962-F-G]

      Maneka Sanjay Gandhi v. Rani Jethmalani (1979) 4 SCC
  167; Subramaniam Swamy (Dr.) v. Ramakrishna Hegde
  (1990) 1 SCC 4; Ku/winder Kaur alias Ku/winder Gurcharan
G Singh v. Kandi Friends Education Trust and Ors. (2008) 3
    sec 659, relied on.
                           Case Law Reference:
          (1979) 4 sec 167          relied on           Para 8
H         (1990) 1 sec 4            relied on            Para 9
D.A.V. BOYS SR. SEC. SCHOOL v. DAV COLLEGE 955
            MANAGING COMMITTEE

     (2008) 3 sec sss             relied on         Para 10     A
    CIVIL ORIGINAL JURISDICTION : Transfer (Civil) Nos.
1233-1237 of 2008.

    Petition Under Section 25 Code of Civil Procedure.
                                                                B
                               WITH

T.P.(C) Nos. 243-244 of 2009

T.P.(C) No. 667 of 2009.
                                                                c
     Mukul Rohatgi, Ranjit Kumar, E.C. Agrawala, Mahesh
Agarwal, Rishi Agrawala, Gladys Daniel, S. Santnam
Swaminadhan, Naveen R. Nath, S.S. Ray and Rakhi Ray for
the appearing parties.

    The Judgment ·of the Court was delivered by
                                                                D

    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 E
Registration Act, 1860. According to the petitioners, the Society
was registered on 02.01.1975 and has been running and
managing schools for the 1ast more than 30 years. The schools
                           1




are being run under a specific system of education propounded
by "Swami Dayanand Saraswati" known as "Dayanand Anglo F
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 !s running about 700
educational institutions. On 16.01.2005, the respondent-
Committee has obtained a trademark registration in respect G
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 H
    956      SUPREME COURT REPORTS                  [2010) 8 S.C.R.


A   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". 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
B   Society at Chennai individually without making the Society as
    a party.

        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
C   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.
D
        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
E Vedic College Trust and 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
F 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
G 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
H
D.A.V. BOYS SR. SEC. SCHOOL v. DAV COLLEGE 957
   MANAGING COMMITTEE [P. SATHASIVAM, J.]

petitioners in T.P. (C) Nos. 1233-1237 of 2008 and 243-244            A
of 2009, Ms. Gladys Daniel, learned counsel for 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         8.
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;
                                                                      c
      (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    D
              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.                                          E

      (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
                                                                      F
              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     G
              and it is difficult for him to attend the hearing at
              Delhi.

     6. The respondent-Committee, while denying all the claims
of the petitioners, highlighted that in view of the fact that about   H
    958       SUPREME COURT REPORTS                    [2010] 8 S.C.R.


A 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 stated that the President who is running the
8 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
C 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
D power to this Court to transfer suits etc. which reads thus:

          "25. Power of Supreme Courl 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
E         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."

F       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
G         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
H         imperilling, from the point of view of public justice and its
D.A.V. BOYS SR. SEC. SCHOOL v. DAV COLLEGE 959
   MANAGING COMMITTEE [P. SATHASIVAM, J.]

     attendant environment, is necessitous if the Court is to         A
     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 (Or.) V.                    B
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               C
     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         D
     in which the other High Court had its principal seat
     consented to the transfer. The present Section 25 confers
     the power of transfer on 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        E
     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          F
     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     G
     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
                                                                      H
    960       SUPREME COURT REPORTS                    (2010] 8 S.C.R.


A         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
B
          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
c         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
D         inconvenience to the plaintiff. The petitioner's plea for the
          transfer of the case must be tested on this touchstone."
          (Emphasis supplied)

       10. In Ku/winder Kaur alias Ku/winder Gurcharan Singh
E 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
F         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
G         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
H         a considerable section of public interested in the litigation;
D.A.V. BOYS SR. SEC. SCHOOL v. DAV COLLEGE 961
   MANAGING COMMITTEE [P. SATHASIVAM, J.]

     "interest of justice" demanding for transfer of suit, appeal       A
     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                      B
     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
                                                                        c
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           D
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 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     E
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            F
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     G
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 have been pending all over
                                                                        H
    962      SUPREME COURT REPORTS                    [2010] 8 S.C.R.


A India. Though the petitioners have raised the problem of
  distance, language and age of the PresidenVSecretary 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
B defendants in order to defend their case necessarily have to
  spend sometime 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
c 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
D acceded to, taking note of the fact that their institutions
  numbering more than 700 have been spread over India and 50
  other suits are pending in various places, it would be more
  difficult for the respondenUplaintiff to continue with their suits and
  in that event their sufferings would be more than the
E 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
F registered trade marks 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
G 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
H
O.A.V. BOYS SR. SEC. SCHOOL v. DAV COLLEGE 963
   MANAGING COMMITTEE [P. SATHASIVAM, J.]

petitioners. Consequently, all the transfer petitions are          A
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.
                                                                   B
B.B.B.                           Transfer Petitions dismissed.