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 Act (in short ‘TM Act’) has not been impleaded, the plaint is liable to be rejected.

3. Rebutting the contention of learned counsel for the plaintiff in respect of the fact that from the plaint no case for no cause of action is made out and no bar of law has been shown in entertaining the plaint, learned counsel for the defendant relies upon the proviso to Order 1 Rule 9 CPC which provides that the earlier portion of the Rule shall not apply to non-joinder of a necessary party. Learned counsel for the defendant submits that the suit is not only barred in terms of Section 17 of the TM Act but also under Sections 52 and 53 of the TM Act and thus liable to be rejected by way of demurer and not dismissed which can be after the parties are heard.

4. Distinguishing the decision of the Supreme Court in the case reported as 2006 (33) PTC 281 SC Ramdev Food Products Pvt. Ltd. Vs. Arvindbhai Rambhai patel & Ors. learned counsel for the defendant submits that the said decision was rendered by Supreme Court before Section 17 in the present form was incorporated which amendment has been noted by the Division Bench of this Court in 233 (2016) DLT 25 Vardhman Buildtech Pvt. Ltd. & Ors. Vs. Vardhman Properties Ltd. Reliance is also placed on the decision reported as 236(2017) DLT 333 P.K.Sen Vs. Exxon Mobile Corporation & Anr.

5. The submission of learned counsel for the plaintiff is that at this stage, the Court will only look into the averments in the plaint by way of demurer and the suit cannot be dismissed for non-joinder of parties there being distinction between the dismissal of the suit and rejection of the plaint; the averments in the plaint bring out cause of action and do not qualify in the four categories laid down under Order VII Rule 11 CPC warranting rejection of plaint. Reliance is placed on the decisions reported as JT 2007 (3) SC 69 Prem Lata Nahata & Anr. Vs. Chandi Prasad Sikaria and MANU/DE/1057/2001 Gajinder Pal Singh Vs. Mehtab Singh & Ors. Learned counsel for the plaintiff further contends that though plaintiff is the registered owner of six label marks however the word ‘Max’ is an essential feature of the six registration certificates in favour of the plaintiff and hence the defendant is infringing plaintiff’s trade mark by using the word MAXCURE HOSPITAL, MAXKURE/MAXCURE MEDCITI. Reliance is also placed on the decisions reported in Ramdev (supra); 2012(50) PTC 433 (Del.) United Biotech Pvt. Ltd. Vs. Orchid Chemicals & Pharmaceuticals Ltd.; 233 (2016) DLT 25 Vardhman Buildtech Pvt. Ltd. & Ors. Vs. Vardhman Properties Ltd.; 236(2017) DLT 333 P.K.Sen Vs. Exxon Mobile Corporation & Anr.; 199 (2013)DLT 242 Keshav Kumar Aggarwal Vs. M/s.NIIT Ltd. and 214(2014) DLT 123 General Mills Marketing Inc. & Anr. Vs. South India Beverages Pvt. Ltd. to contend