IA No.11405/2016 (u/O VII R 11 read with Order I Rule 9 CPC by the defendant)

1. By this application the defendant seeks rejection of the plaint on the ground of non-joinder of necessary parties and non-disclosure of vital facts. Learned counsel for the defendant submits that vide order dated 20th July, 2016 when summons were being issued in the suit, the plaintiff had given up the prayer in clause 44(A)(b) which is of passing off while confining the reliefs in terms of clauses 44(A)(a), (B), (C) and (D).

2. Learned counsel for the defendant contends that admittedly as per the plaint, plaintiff is not the owner of the trade mark ‘Max’ which was owned initially by Max Financial Services limited (in short MFSL) and later transferred to Max India. The plaintiff is the registered owner of six label marks and thus cannot claim ownership or proprietorship of the word mark ‘Max’. Further, in the plaint, it is not even pleaded that the word ‘Max’ is essential feature of the plaintiff’s registered label mark. Since the necessary party in terms of Section 17 of the Trade Marks