Delhi District Court
Max Healthcare Institute Limited vs Srk Max Hospital on 1 May, 2025
IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
COMMERCIAL COURT-01, SOUTH ,
SAKET COURTS, DELHI
CS (COMM) No. 475/2024
DLST010119532024
In the matter of :
Max HealthCare Institute Limited
N-110, Panchsheel Park
New Delhi - 110017
Also At :
401, 4th Floor
Man Excellenza, S.V. Road, Vile Parle (West), Mumbai
Maharashtra - 400056
........PLAINTIFF
Vs.
1. SRK Max Hospital & Ors.
B-13, Krishna Nagar, Behind Kailash Tower
Lalkothi, Jaipur, Rajasthan - 302001
Also At :
33/34, Everest Colony, Behind Apex Mall,
Lal Kothi, Jaipur - 302015
2. Shri Ram Krishna Healthcare Private Limited
B-13, Krishna Nagar, Behind Kailash Tower
Lalkothi, Jaipur, Rajasthan - 302001
3. Anubhuti Sharma
Director of Defendant no.2,
B-13, Krishna Nagar, Behind Kailash Tower
1/14
CS (Comm) No. : 475/2024
Lalkothi, Jaipur, Rajasthan - 302001
4. Ravi Sharma
Director of Defendant no.2,
B-13, Krishna Nagar, Behind Kailash Tower
Lalkothi, Jaipur, Rajasthan - 302001
5. Rakesh Sharma
Director of Defendant no.2,
B-13, Krishna Nagar, Behind Kailash Tower
Lalkothi, Jaipur, Rajasthan - 302001
......DEFENDANTS
Date of Institution : 09.10.2024
Date of Arguments: 13.02.2025, 07.03.2025, 27.03.2025
and 28.04.2025
Date of Judgment : 01.05.2025
JUDGMENT
1. Plaintiff has filed instant suit for permanent injunction seeking restrainment of infringement of Tade Mark, Passing off, Damages and Delivery Up etc. against the defendants, based upon the submissions that plaintiff is the proprietor of the trade mark/ name MAX and has used this extensively in relation to healthcare services since 2000. Plaintiff is also the registered proprietor of a MAX family/series of marks, all of which contain MAX as the essential and dominant feature thereof. It was alleged that defendants are operating a hospital in Jaipur under the impugned trade mark/ name SRK MAX HOSPITAL and are thus using an identical trade mark/ name as that of the Plaintiff's trade mark/ name MAX and Max Marks including MAX HOSPITAL in relation to identical services viz. healthcare and CS (Comm) No. : 475/2024 2/14 medical services for which the Plaintiff has already obtained various registrations.
2. Vide order dated 14.10.2024, injunction was granted in favour of the plaintiff and against defendants. Defendants, their associates and agents, directors, officers, employees, distributors, franchisee, representatives, assignees and anyone acting from or on their behalf were restrained by ad-interim ex-parte injunction from using impugned trademark/name MAX or any other mark identical with or deceptively similar to the Plaintiff's trademark/name "MAX" , in any manner including as a part of impugned marks/names SRK MAX HOSPITAL or the domain name https://srkmaxhospitals.com/, amounting to infringement of plaintiff's registered trade marks.
3. Considering that the defendants were using the infringing mark for a hospital, in order to ensure that there was no inconvenience to patients and others who may be obtaining the defendant's services, injunction was to be effective w.e.f. 30.10.2024 and defendants were also permitted liberty to move an application if they wished to seek any variation in the order. Compliance of Order 39 Rule 3 CPC was directed to be made.
4. Plaintiff thereafter moved application under Order 39 Rule 2 (A) CPC stating about non compliance on behalf of defendants with regard to the injunction order. Ld. counsel for defendants sought time to file reply but after the repeated adjournments, reply to the application had not been filed nor the written statement. Right of defendants to file reply to the application under order 39 Rule 2A CPC was closed . Still counsel for defendants was permitted liberty to address 3/14 CS (Comm) No. : 475/2024 arguments or to file written submissions on application under Order 39 Rule 2 A CPC. Said liberty was not availed by defendants. Finally the matter came to be listed for orders on application under Order 39 Rules 2 (A) CPC for 07.03.2025.
5. Counsel for defendant on the said date, fixed for orders, sought to address arguments but failed to ensure his presence, despite repeated pass overs permitted. Conduct of defendants was noted on record vide order dated 07.03.2025. Counsel for defendants submitted that they had complied with the injunction order, though Ld. counsel for plaintiff even as on 07.03.2025, submitted on record with regard to continuous non compliance of the injunction order . The applications filed on behalf of defendants under Order 39 Rule (4) CPC, reply to application under order 39 Rule 2A CPC were taken on record for consideration subject to payment of cost.
6. Thereafter, the cost was not paid. Defendants were again permitted time to make payment of cost and was granted liberty to file written submissions on record subject to payment of cost. None of the above noted was complied with by defendants. Counsel for plaintiff placed on record printout of the compilation and booking confirmation for appointment of hospital of defendant as well as snapshots reflecting the display and user of the impugned name by the defendants even as on 28.04.2025. Counsel for defendants submitted that display board was inadvertently left unattended and they shall file compliance report within 24 hours. No such compliance report has been filed on record. Counsel for plaintiff stated that in absence of the written statement on record within the prescribed period or even CS (Comm) No. : 475/2024 4/14 within the extended period of 120 days, suit of the plaintiff may also be decreed as per provisions of Order 8 Rule 10 CPC.
7. Pertaining to application under Order 39 Rule 2 (A) CPC, it was submitted by Ld. counsel for plaintiff that use of the trademark MAX including as a part of the impugned trade marks SRK MAX HOSPITAL by the Defendants after October 30, 2024 constitutes wilful disobedience thereof and amounts to contempt of court. In the first week of December 2024, i.e. more than 7 weeks after the grant of the interim injunction and about 5 weeks after the interim injunction became operational, plaintiff conducted inquiries to check if Defendants are complying with the court's order. The enquiries revealed that Defendants continued to extensively use the impugned and injuncted trade mark MAX including as a part of the impugned marks SRK MAX HOSPITAL etc. and the domain name https://srkmaxhospitals.com/. in blatant and wilful disobedience of the injunction order.
8. Screenshots dated December 4, 2024, of the Defendants' website hosted at https://srkmaxhospitals.com/and social media page dated December 3, 2024 were also filed alongwith the application, evidencing the continuous contumacious use of the impugned mark. Subsequent thereto, printouts of the defendants' website reflecting the flouting of the injunction order passed by this Court as on 07.03.2025 as well as printout of the compilation and booking confirmation for appointment of hospital of defendant as well as snapshots reflecting the display and user of the impugned name by the defendants as on 28.04.2025 were also filed on record by plaintiff . Counsel for defendant was also 5/14 CS (Comm) No. : 475/2024 shown the live website from the laptop of counsel for plaintiff, evidencing the continuous infringement.
9. It was further the submission of Ld. counsel for plaintiff that it is well settled that the threshold of judicial scrutiny required in the field of healthcare is considerably higher than in other fields owing to the potential harm resulting from the high degree of confusion bound to arise owing to the identity between conflicting marks. The use of the impugned mark SRK MAX HOSPITAL, the domain name https://srkmaxhospitals.com by the Defendants, despite the operation of an injunction order shortly on the heels of a pandemic, is extremely detrimental and prejudicial to the distinctive character and repute of the Plaintiff's reputed trade mark and name MAX and defendant's wilful disobedience of the orders of this Court ought not to be tolerated.
10. It was further submitted by Ld. counsel for plaintiff that the plaintiff has sought damages against the Defendants in the suit. The Defendant's conduct make it evident that they will not comply with a decree of damages if passed in the Plaintiff's favour at the conclusion of the proceedings. Since the Defendants are highly unlikely to be forthcoming to satisfy a decree of damages, the Plaintiff may be constrained to pursue execution proceedings against the Defendants resulting inter alia in multiplicity of proceedings.
11. Though reply to application under Order 39 Rule 2 (A) CPC was not to be considered on record, yet with the consideration of fair trial /opportunity to the defendant, same is considered for the purpose of disposal of the application.
CS (Comm) No. : 475/2024 6/1412. It is stated in the reply that the present application is not maintainable as this court lacks power to issue contempt which power only lies with the Hon'ble High Courts in terms of Section 10 and 15 of the Contempt of Courts Act, 1971. Reliance was placed upon CM(M) 36/2022 titled "ICICI BANK LIMITED Versus RASHMI SHARMA" , wherein it was observed that :
"..13. In any case, in view of Sections 10 and 15 of the Contempt of Courts Act, 1971, only High Courts have the power to take cognizance in respect of contempt of courts subordinate to it. Subordinate courts cannot assume jurisdiction and issue show cause notice as to why contempt proceedings be not initiated. A subordinate court can only make a reference to the High Court for initiating contempt proceedings."
13. Submission of Ld. counsel for defendants is apparently misplaced. This court is not exercising the power as per the Contempt of Courts Act but in the proceedings under Order 39 Rule 2 (A) CPC . It was also mentioned in the reply that although plaintiff claimed to have served the injunction order on 15.10.2024, defendants were unable to fully comprehend the legal implications due to a combination of technical difficulties and inability to meet their legal counsel in timely manner. Further, defendants encountered technical issues with their email and communication systems, which resulted in delay in receiving and properly reviewing the injunction order and its implications. Defendants' lack of familiarity with digital communication and legal documentation further compounded the delay. The continued presence of the name 'SRK MAX HOSPITAL' was purely unintentional and arose due to logistical and technical constraints. Furthermore, defendants were engaged in critical patient care and emergency services, making it difficult to prioritize immediate legal compliance over urgent medical 7/14 CS (Comm) No. : 475/2024 responsibilities. Once the Defendants were able to consult their legal counsel and resolve the technical issues, they took immediate steps to comply with the order.
14. It was further submitted that there was no Willful or deliberate disobedience of the interim injunction order . The alleged continuous use of the mark "SRK MAX HOSPITAL"
was not intentional but rather the result of limited technological expertise, unforeseen technical faults and time constraints.
15. At the cost of repetition, it may be noted that injunction order was effective w.e.f. 30.10.2024. Even if the contention of defendants is accepted on record that lack of technological expertise/unforseeen technical fault prevented them from timely compliance, it was counsel for defendants himself who submitted on record with regard to absolute compliance of injunction order as on 07.03.2025. Plaintiff had placed on record printouts of the payment receipt, booking page and booking confirmation of defendant's hospital under the infringing mark 'SRK MAX' as on February 12, 2025 . Printouts of the defendants' website and social media pages reflecting the flouting of the injunction order dated 07.03.2025, thereafter of 27.03.2025 were also filed on record by plaintiff .
16. Defendants were still found using the impugned mark i.e. SRK Max Hospital as displayed outside the hospital. Snapshots of the same alongwith newspaper clipping dated 08.04.2025 were placed on record followed by similar snapshots dated 28.04.2025. Defendants apparently continue to be in the blatant and flagrant violation of the injunction order. So much so, despite the submission of counsel for defendant to file the compliance CS (Comm) No. : 475/2024 8/14 affidavit within 24 hours, same has not been filed on record. Today, compliance report on behalf of defendants has been filed on record alongwith screenshot of the website and snapshots of the hospital, taken on 29.04.2025. From the snapshots, it is visible that from the words SRK MAX HOSPITAL on display board and display on walls, letters for word 'MAX' have been taken out and at other places, word 'MAX' has merely been hidden with Correction/White Fluid, which seems to be superficial exercise, with no genuine efforts to comply with the injunction order in letter and spirit.
17. Ld. Counsel for plaintiff submitted that even as on today i.e. 01.05.2025, website/facebook page of defendants is showing SRK MAX HOSPITAL. Printout of the defendant's social media page and listing on third website as on 01.05.2025 placed on record, reflecting the non compliance on the part of the defendants. It was submitted by Ld. Counsel for plaintiff that defendants are operating on social media, as is visible from today's documents placed on record under the impugned name. Ld. Counsel for defendants submits that the site has been redirected to SRK GROUP as algorithm redirects to same site, despite the fact that they have removed it from every social media platform.
18. Contention of Ld. Counsel for plaintiff is acceptable that domain name is in control of parties. If the same is still being redirected to the impugned name, it reflects the gross violation as redirecting activity is required to be controlled and defendants have consciously chosen to continue with the impugned name.
19. Ld. counsel for plaintiff submitted that defendants are liable to be punished for such willful act of contempt while placing 9/14 CS (Comm) No. : 475/2024 reliance upon Louis Vuitton Malletier Vs. Capital General Store & Ors. (2023 SCC Online Del 613), wherein it was observed that :
1. Interlocutory orders of injunction are passed by this Court, on a daily basis, in intellectual property matters. The Court finds itself faced, in several such cases, with applications under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (CPC), by plaintiffs complaining that the defendants have violated the interim order of injunction. In many such cases
- as in the present - the allegation is found to be true. The violation, however, generally stops on or before the date when the court issues notice on the application under Order XXXIX Rule 2A. The plaintiff, however, insists, and not without justification, that the defendant cannot be let off.
The plaintiff, is a violator, and deserves to be punished. The Supreme Court echoes this sentiment, in para 54 of Surya Vadanan v. State of Tamil Nadu1:
―54. As has been held in Arathi Bandi v. Bandi Jagadrakshaka Rao , a violation of an interim or an interlocutory order passed by a court of competent jurisdiction ought to be viewed strictly if the rule of law is to be maintained. No litigant can be permitted to defy or decline adherence to an interim or an interlocutory order of a court merely because he or she is of the opinion that that order is incorrect--that has to be judged by a superior court or by another court having jurisdiction to do so. It is in this context that the observations of this Court in Sarita Sharma v. Sushil Sharma3, and Ruchi Majoo v. Sanjeev Majoo4, have to be appreciated. If as a general principle, the violation of an interim or an interlocutory order is not viewed seriously, it will have widespread deleterious effects on the authority of courts to implement their interim or interlocutory orders or compel their adherence". .........................
20. Ld. Counsel for plaintiff further placed reliance upon Cargil India Private Limited Vs. M.M. Oil Enterprises 2019 SCC Online Bom 857 : (2019) 78 PTC 577 wherein defendant had sought to tender an apology which was declined by the court. It was noted that:
" 39.Although an attempt has been made to couch his apology as an 'unconditional' one, the Defendant has even now sought to justify his breach on the same claim that he was unaware of this Order and that he made mistakes "
of not getting the same understood from my advocate". This claim has since been demonstrably proven to be false. Thus the apology rendered is neither unconditional nor sincere. In these premises, the Defendant's apology is wholly lacking in contrition to be accepted at law.
CS (Comm) No. : 475/2024 10/1444. In the present case, the Defendant's apology lacks "penitence" and rings hollow. His apology has neither been made at the earliest opportunity, nor in good grace. It has only been made at this late juncture to avoid punishment. Though couched as 'unconditional', it is qualified by a claim (now found to be false) that the Defendant lacked knowledge and awareness of the Court's Orders., It is a clear, cynical and desperate gambit by a litigant to escape penal liability for his willful and wanton disobedience of the Court's Order of 12 th April, 2017. For these reasons, the Defendant's apology fails to meet the law's requirement, that it be a bonafide act of contrition. Consequently, it must be rejected".
21. Ld. counsel for plaintiff also placed reliance upon Pfizer Inc. and Ors. Vs. Triveni Interchem Private Limited and Ors. CS (COMM) No. 442/2021, wherein it was observed that:
"23. In view of the aforesaid, I am of the opinion that, as the defendant has clearly committed wilful and contumacious contempt of this Court within the meaning of Order XXXIX Rule 2A of the CPC, the Defendant 1 through Mr. Kamlesh Singh, he has rendered himself liable to punishment. Accordingly, in the interest of justice, the Court deems it appropriate to dispose of this application by directing Kamlesh Singh, the director of Defendants 1 and 2 to pay, to the plaintiff, an amount of ₹ 2,00,00,000/- within a period of two weeks from today, failing which he shall be taken into custody and detained in a civil prison for a period of two weeks at Tihar Jail, Delhi".
22. It was further submitted by Ld. counsel for plaintiff that the orders for payment of punitive costs were passed in Louis Vuitton Malletier Vs. Capital General Store & Ors. and Pfizer Inc. and Ors. Vs. Triveni Interchem Private Limited and Ors. (supra), after the defendants had complied belatedly. It was submitted that in the instant matter, there is extensive evidence of the contempt, continuing even as on date. Owing to their disobedience, plaintiff was constrained to monitor the defendant's non-compliance at its own cost and keep the court informed. Given the healthcare services involved, it is important that no leniency is shown to the contemnors and order for punishment relying upon the orders (supra), may be passed.
11/14CS (Comm) No. : 475/2024
23. Having discussed as above, defendants are accordingly held liable to be in contempt for disobedience of the injunction order. As the defendants have clearly committed willful and contumacious contempt of the Court within the meaning of Order XXXIX Rule 2A of the CPC, defendants have rendered themselves liable to punishment. Accordingly, application under Order 39 Rule 2 A CPC stands disposed off with directions to defendants to pay the plaintiff, an amount of Rs. 5,00,000/- (Rs. Five lacs only) within a period of two weeks from today. In case of non payment of amount, defendants shall be taken into custody and detained in civil prison for a period of two weeks at Tihar Jail, Delhi. It is also directed that any further default shall entail damages in further sum of Rs. 5,00,000/- (Rs. Five lacs only) for every week of disobedience/non-compliance, in default, incarceration for one week for every default, till the absolute compliance is made.
24. Further, defendants in the matter had been served on 15.10.2024. As submitted on behalf of defendants in the application seeking condonation of delay, the email ID upon which summons were sent dated 15.10.2024 is not operational and defendants received the copy of the summons and suit on 19.10.2024. Written statement had not been filed within the prescribed period or even within the extended period of 120 days. Thereby, defendants lost their right to file written statement. Written statement though was filed on 19.02.2025, however the same having been filed beyond the expiry of even the extended period of 120 days, cannot be considered on record. In terms of Order 8 Rule 10 CPC, where any party from whom a written statement is required, fails to present the same, within the time CS (Comm) No. : 475/2024 12/14 permitted, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. Ld. Counsel for plaintiff, thereby sought disposal of the suit as per provisions of Order 8 Rule 10 CPC.
25. In absence of any defence of the defendant on record, in view of non consideration of the written statement, same having been filed beyond the prescribed period and the extended period of limitation and rather despite the submission of compliance of the injunction order, defendants having failed to comply with the same and furnishing the incorrect information on record, plaintiff is held entitled for judgment. Injunction order passed vide order 14.10.2024 is made absolute. Consequently, the application of defendant seeking vacation of stay under Order 39 Rule (4) CPC (though was not to be considered on record), also stands dismissed. Relying upon Reckitt Benckiser India Private Limited Vs. Sharad Jagat Pal Shrivastva 2022 SCC Online Del 970, counsel for plaintiff sought award of the costs. In the judgment (supra), it was noted that the actual costs ought to be awarded, keeping in mind the bill of costs, including counsel fees etc. Accordingly, in the instant matter also, plaintiff is held entitled for the cost . Cost Certificate though has not been filed on record. Hence, the cost is awarded in sum of Rs. 4,00,000/- (Rs. Four Lacs only).
26. Suit is decreed with cost whereby:
(1) Decree for permanent injunction is passed restraining the defendants, their associates and agents, directors, officers, employees, distributors, franchisee, representatives, assignees and anyone acting from or on their behalf are restrained from using impugned trademark/name MAX or any other mark 13/14 CS (Comm) No. : 475/2024 identical with or deceptively similar to the Plaintiff's trademark/name "MAX" , in any manner including as a part of impugned marks/names SRK MAX HOSPITAL or the domain name https://srkmaxhospitals.com/, amounting to infringement of plaintiff's registered trade marks.
(2) Defendants are further directed to withdraw trademark application number 6374632 in class 44 or any other application for the trademark in class 44 or any allied or cognate goods or services or any other goods or services in respect of which the plaintiff's MAX trademark is used and registered, for the mark SRK MAX HOSPITAL and/or any mark deceptively similar to the plaintiff's MAX trademark.
27. Decree sheet be prepared accordingly. File be consigned to record room after completion of necessary formalities.
Digitally signed by savita savita rao Date:
rao 2025.05.01
16:57:57
+0530
Announced in the open (SAVITA RAO)
court on this 1st day DISTRICT JUDGE
of May 2025 (COMMERCIAL COURT)-01
SOUTH, SAKET COURTS, DELHI
CS (Comm) No. : 475/2024 14/14