Disposed

Black Ticket Films v. Walter Philip and Anr.

Bombay HC6 Oct 2016NMS/1205/2016

Case brief

AI extract

What is this about?

The Bombay High Court framed preliminary issues regarding the revocation of leave to appeal under Clause 12 of the Letters Patent in a civil suit. The judge permitted the Plaintiffs to lead evidence limited to the preliminary issue to ascertain the basis of their jurisdictional apprehension, while allowing cross-examination by the Defendants.

What did the court decide?

Preliminary issues framed; Plaintiffs permitted to lead evidence limited to the preliminary issue on 19th October 2016; Suit to be heard separately.

Black Ticket Films Vs Walter Philip and Anr. — Civil Procedure and Limitation | Bombay HC (2016)

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932-NMS1205-16.DOC

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ATUL

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1205 OF 2016

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IN

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LEAVE PETITION NO. 295 OF 2015

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IN

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SUIT NO. 93 OF 2016

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Black Ticket Films
Versus
Walter Philip & Others

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…Plaintiffs

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…Defendants

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Ms. Mallika Taly, i/b Mr. Amir Arsiwala, for the Plaintiffs.
Mr. J.K. Mitra, i/b Mr. Virendra Kanojia, for the Defendants.

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CORAM:G.S. PATEL, J
DATED:6th October 2016

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PC:-

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1.The Defendants have filed this Notice of Motion seeking that
leave under Clause 12 granted to the Plaintiffs be revoked. This will,
in view of the decision of the Division Bench of this Court in ICICI
Limited, Mumbai v Sri Durga Bansal Fertilizers Limited & Others,1
have to be dealt with as preliminary issue under Section 9A of the
Code of Civil Procedure, 1908. Accordingly, the following
preliminary issues are framed:

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1 1999(3) Mh.L.J. 20

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Page 1 of 3

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6th October 2016

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932-NMS1205-16.DOC

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(a) Whether the leave granted by this Court under Clause 12 of the Letters Patent to the Plaintiffs is liable to be revoked?

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(b) If the answer to the aforesaid issue is in the affirmative and leave is revoked, whether the Suit is liable to be dismissed for want of jurisdiction or whether this Plaint is liable to be returned for being filed in an appropriate Court?

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2.Ms. Taly i/b Mr. Arsiwala for the Plaintiffs submits that she
proposes to lead evidence. Mr. Mitra for the Defendants states that
this should not be permitted and it is always within the discretion of
the Court to allow or not a party to lead evidence on a preliminary
issue.

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3.The Plaintiffs have invoked the jurisdiction of this Court on
the basis that they apprehended that the Defendants would use the
infringing mark to release a motion picture under a banner with that
infringing mark in Mumbai. That motion picture has indeed been
released though under a different banner/mark. Whether this is
sufficient to warrant a revocation of the leave or not is not
something that I can decide merely on the pleadings or filings as
they stand. I have very little doubt that the Plaintiffs will need to
explain what that apprehension was. Equally, the Defendants will
need an opportunity to test that material. I do not see how the
Defendants are in any way prejudiced by this. A refusal to permit
evidence will undoubtedly prejudice the Plaintiffs. However, if that

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Page 2 of 3

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6th October 2016

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932-NMS1205-16.DOC

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evidence is led, Mr. Mitra will have the fullest latitude in cross-
examining the Plaintiffs' witness. He will then have an opportunity
to ascertain determinatively what precisely the apprehension and
case of the Plaintiffs was at the time when the Suit was filed. There
can be no clearer material than this in assessing the factual position.

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4.Ms. Taly states that the Affidavit of Evidence, Affidavit of
Documents and compilation will be filed and served on or before
17th October 2016.

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5.List the matter for marking the Plaintiffs' documents on 19th
October 2016.

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6.I am making it clear that the Plaintiffs' evidence is to be
limited to the preliminary issue. It is not to cover any of the other
issues in the Suit since issues are not yet settled. The Plaintiffs will
not be deemed to have given up their case on any of the other issues
in the Suit merely because the Affidavit of Evidence in relation to
the preliminary issue is limited or restricted.

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7.The Notice of Motion is disposed of in these terms with no
order as to costs. The Suit will be taken up separately for hearing on
the preliminary issue.

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(G. S. PATEL, J.)

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Page 3 of 3
6th October 2016

Black Ticket Films v. Walter Philip and Anr.

Case brief

What is this about?

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Black Ticket Films v. Walter Philip and Anr.

Case brief

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