Neutral Citation Number: 2022/DHC/004573

CS(COMM) 430/2022 Page 1 of 12

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CS(COMM) 430/2022 & I.A. 9660/2022, 13229/2022

SILVERMAPLE HEALTHCARE

SERVICES PRIVATE LIMITED

..... Plaintiff

Through:

Mr. Tushar Singh, Ms. Sugandh

Virmani and Mr. Aditya Kumar, Advocates.

versus

DR. TAJINDER BHATTI

..... Defendant

Through:

Ms. Sneha Jain, Mr. Sidharth

Chopra, Mr. Vivek Ayyagari, Mr. Sudarshan

M.J., Ms. Paushi Sridhar and Ms. Ramya A.,

Advocates.

CORAM:

HON'BLE MS. JUSTICE JYOTI SINGH

JUDGEMENT

JYOTI SINGH, J.

I.A. 13233/2022 (under Order VII Rule 11 CPC, by Defendant)

1.

Present application has been preferred on behalf of the

Defendant under Order VII Rule 11 read with Section 151 CPC, 1908

seeking rejection of the plaint on two grounds: (a) Plaintiff is legally

disentitled to institute a suit for infringement of DHI marks by virtue

of provisions of Section 53 of the Trade Marks Act, 1999 (hereinafter

referred to as the ‘Act’); and (b) non-joinder of necessary party qua

the claim for disparagement under Proviso to Rule 9 of Order I CPC.

2.

Relevant it would be to mention at this stage that during the

course of hearing of the present application, with respect to the claim

of infringement of the DHI trademarks, learned counsel for the

Plaintiff had fairly given up the relief of infringement on account of

the Plaintiff being a licensee under the Master Franchise Agreement

dated 26.03.2018 (hereinafter referred to as the ‘MFA’) in light of the

Digitally Signed

By:KAMAL KUMAR

Signing Date:05.11.2022

17:58:30

Signature Not Verified

Neutral Citation Number: 2022/DHC/004573

CS(COMM) 430/2022 Page 2 of 12

statutory bar under Section 53 of the Act. Therefore, this Court is not

adjudicating on the first ground raised by the Defendant for rejection

of the plaint.

3.

Arguing in support of the second ground qua disparagement,

learned counsel for the Defendant submitted that the present suit is, in

fact, a suit for defamation of the DHI trademarks, disguised as a suit

for trademark disparagement, which is evident from the averments in

the plaint. In paragraph 64 of plaint, it is pleaded that the cause of

action first arose when the Defendant posted the defamatory content

and in paragraph 24, it is averred that the suit is for defamation viz.

disparagement of Plaintiff’s brand.It is Plaintiff’s own case that it is

merely a licensee of the DHI trademarks. It is trite that in cases of

defamation, it is only the ‘defamed’ who has locus to institute

proceedings. The DHI technique of hair transplantation was

conceived, developed and is owned by ‘DHI Global Medical Group’

and not the Plaintiff. Plaintiff claims to have acquired the license

under the MFA, Clause 5.2(d) whereof clearly provides that franchisee

will never become entitled to any part of this goodwill nor any

indemnification for promoting or protecting the goodwill. In the

absence of any goodwill vesting in the Plaintiff in the DHI

marks/technique, no claim for defamation/disparagement can lie in the

absence of the owner/proprietor of the said marks. The cause of action

for defamation, if any, is based on the impugned videos which only

make a reference to the DHI brand and technique and it is not even the

Plaintiff’s case that they make any reference to the Plaintiff i.e.

SilverMaple Health Care Services Private Limited. Positive assertions

in the plaint relate to invasion of goodwill and reputation of DHI

marks and technique.

Digitally Signed

By:KAMAL KUMAR

Signing Date:05.11.2022

17:58:30

Signature Not Verified

Neutral Citation Number: 2022/DHC/004573

CS(COMM) 430/2022 Page 3 of