CROSS FIT LLC vs MR RENJITH KUNNUMAL & ANR.

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 5 September 2023
Pronounced on: 9 October 2023

+ CS(COMM) 251/2021 & I.A. 13333/2022
CROSS FIT LLC ….. Plaintiff
Through: Mr. Saif Khan, Mr. Shobhit Agrawal and Mr. Prajjwal Kushwaha, Advocates.

versus

MR RENJITH KUNNUMAL & ANR. ….. Defendants
Through: Mr. Akash Vajpai, Advocate Mr. Sudheesh K.K. for D-1 with Defendant 1 in person

CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T
% 09.10.2023

I.A. 13333/2022 (under Order XXXIX Rule 2A of the CPC) in CS(COMM) 251/2021

1. This judgment disposes of IA 13333/2023.

2. Mr. Saif Khan, learned Counsel for the plaintiff, submits that, as Defendant 1 is guilty of contumacious and willful disobedience of order dated 8 July 2021, he has rendered himself liable to be proceeded against and punished under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (CPC).

3. Para 17 of the order dated 8 July 2021, which contains the operative directions, reads thus:
“17. In view of the aforesaid, the defendants are injuncted, during the pendency of the suit, from using, in the course of trade, the mark “CrossFit” or any other mark/logo identical or deceptively similar to the mark of the plaintiff, offline or online. They are also directed to immediately take down their website and domain name www.sfccrossfit.com as well as all listings, posts, pictures etc. which mention the word/mark “CrossFit” from all sites on the internet including their social media webpages.”

4. The defendants did not choose to file any written statement in the suit which, accordingly, stands decreed by order dated 5 September 2023.

5. The present application, filed on 23 August 2022, is predicated on the allegation that, in violation of the directions contained in the order dated 8 July 2021 supra, multiple investigations carried out by the plaintiff at the defendants’ premises at Kozhikode revealed that the defendants were continuing to use the impugned mark “SFC CROSSFIT” and the impugned logo not only at the premises of the gym which was being run under the said name, but also on online trade directories such as www.justdial.com, www.townin.com and www.heygyms.in.

6. The following photographs were also provided with the application to indicate that the signage and hoarding revealing use of the mark “SFC CROSSFIT” continued to be prominently displayed both outside and inside the gym premises, wherein Defendant 1 continued to provide gym services:

7. The application also provided a screenshot of a membership application form, which indicated use of the mark “CrossFit”, whereby applicants could secure admission into the gym.

8. In these circumstances, the application prays that punitive action be initiated against Defendant 1 under Order XXXIX Rule 2A of the CPC.

9. Notice was issued in the present application by the court on 24 August 2022. This Court opined, in para 11 of the order passed on the said date, that the photographs included in the application indicated that, even as on 16 August 2022, the defendants were using the mark “CrossFit” both at the physical gym premises as well as on its online portal. In order to ascertain the exact extent and nature of violation, this Court appointed an advocate of this Court as a local Commissioner to visit the premises of the defendants, to remove any hoardings, billboards or any other material bearing the mark “SFCCROSSFIT” or “CrossFit”, prepare an inventory thereof, and also examine the accounts of the defendants.

10. The learned local Commissioner filed his report along with his on-the-spot report regarding execution of the commission and other documents under cover of an index dated 15 September 2022. The report states that the word “CrossFit” was found by the learned local Commissioner on (i) three flex hoardings, (ii) stickers affixed at the bottom of the stairs and (iii) the front page of six membership application forms found at the premises. All these materials were seized and taken into custody by the learned local Commissioner. There was no other register or ledger reflecting use of the words “SFC CROSSFIT” or “CrossFit”. Para 3 (v) to (vii) of the report of the learned local Commissioner are reproduced thus:
“(v) I have found three flex hoardings, two of which were affixed near the entrance to the staircase leading up to the Inspected Premises, and one on the third floor of the facade of the building in which Inspected Premises in situated, which prominently displayed the word “SFC CROSS FIT”. Besides this there were stickers displaying “SFC CROSS FIT” affixed to the bottom of the stairs. As mandated in the Order, I have removed the flex printed faces of the infringing hoardings as well as removed the stickers. The said flex sheets and stickers were then rolled up and covered with a plastic sheet and sealed by me at the premises, in the presence of the counsel for the Plaintiff. The photographs of the rolls and sealed package are annexed hereto and marked as Annexure D (Colly). Since neither the Defendant nor any representative of the Defendant were present the Inspected Premises, the Superdari of the said items could not be done as mandated in the Order dated 24.08.2022. Consequently, I had to carry back the sealed hoardings and stickers with me to Delhi. I seek the liberty of this Hon’ble Court to deposit the same with the Registry or for directions for appropriate custody of the sealed hoardings and stickers.

(vi) Besides the aforesaid hoardings, I did not find any conspicuous usage of “SFC CROSS FIT” anywhere in the premises. On the Reception Table I found “Membership Application Form”, a perusal of which showed that the word “Crossfit” appears on the front page and the service providing organisation is termed as “SFC CROSSFIT” in the terms and conditions on the reverse of the Membership Application Form. Therefore, I have taken into custody all the 6 copies of the said Membership Application Forms. No other material carrying any infringing mark was found in the premises. The said Membership Application Forms (6 in number) are placed in a sealed cover and annexed hereto and marked as Annexure E.

(vii) As regards accounts, I found Two Registers/Ledgers on the table placed at the Reception of the Inspected Premises, in which handwritten entries had been made of receipt of some payments. However, there was no reference to “SFC CROSS FIT” or “CROSS FIT” in those Registers/Ledgers. However, I have taken copies of the pages of these Registers/Ledgers. Since the Desktop Computer placed at the Reception was non-functional and no one responsible or aware of its operation was available in the Inspected Premises, the contents/data stored in the Computer could not be examined. The photocopies of copies of the pages of these Registers/Ledgers (49 pages in number) are placed in a sealed cover and annexed hereto and marked as Annexure F. Copies of this Annexure is not being provided to the Plaintiff, as directed by this Hon’ble Court.”

11. Mr. Khan has placed reliance on certain pages from “on-the-spot proceedings”, drawn by the learned local Commissioner which may also, therefore, be reproduced as under:
“8. I called up on the number “8943142187” as this was the number written on the boards and enquired from the gentleman who picked up the phone as to when the premises will open. I was told that it would open at 05.00 pm as the morning session closed at 11.00 AM.

*****

12. On seeing us, a bearded gentlemen who did not reveal his name, walked up to the spot and asked us about the purpose of our visit. He stated that he is a person known to the Defendant Mr. Renjith. I stated that I have come from Delhi in relation to an ongoing case in Delhi High Court and that I needed to meet Mr. Renjith. At that point, the bearded gentlemen dialled a number and made me speak to a person who claimed to be Mr. Renjith. Mr. Renjith informed me that he is not in station and will contact his lawyer to reach the spot. He also informed me that he has stopped usage of “CROSSFIT” in any of his materials.

*****

15. At this time Mr. Sreejith Cherote, Advocate reached the premises. He informed me that he was the counsel for SFC and had reached the premises since Renjith informed him that a commission is being executed at the premises. I requested him to accept a copy of the contempt petition as well as the order and sign in acknowledgment. He however, refused stating that he was not Mr. Renjith’s Advocate and has no instructions to receive any document on his behalf.

*****

17. Mr. Sreejith also informed me that the present premises are also being shut down by SFC in two months’ time. At this time Boxing classes were being held at the premises. He provided his mobile number 9349110721 to me and stated that he is available for any information, as his office was nearby.

*****

22. At that time a class was still going on and was being conducted by one person who said his name was “DADU” and mobile number was 8593912936. He said that he would be closing the premises for today and carrying the keys with him. He also confirmed, on being asked for Mr. Renjith’s number that it is 8943192187.”

12. Defendant 1 has filed a reply to the present application. During the course of hearing of this application on 28 February 2023, this Court directed Defendant 1 to place certain documents, corroborating the averments taken in the reply, on record. Subsequently, an affidavit dated 15 March 2023 has been filed by Defendant 1, annexing certain documents to which the plaintiff has filed an affidavit dated 18 May 2023 in response.

13. The stand of Defendant 1, in its reply to the present application, read with affidavit dated 15 March 2023, is that Defendant 1 never received any summons or notice in the present matter. He was a partner with six others, in the firm “SFC CROSSFIT”, which was constituted vide Partnership Deed dated 10 December 2016. The firm was to provide gym services at the premises indicated therein. The partnership was dissolved vide Deed of Dissolution dated 28 May 2019, which stated that the sixth partner Rohit M. had settled in the US and that the other remaining partners were not interested in continuing the gym. The terms of dissolution read thus:
“1. It is decided by the parties to dissolve the partnership subsisting between them under the deed of partnership dated 10-12-16 with effect from 31-05-19.

2. The accounts of the assets and liabilities of the said partnership have been assessed since the assets and liabilities are negligible none of the partners are interested in the same all the partners have been seen the said accounts & are satisfied about its correctness.

3. After the dissolution, the partners shall not carry out any professional activities in the name of the firm except to realise all the assets and discharge all outside liabilities.

4. Bank account of the firm shall be closed as soon as possible.

5. Since the firm is a fitness gym it is decided by the parties to continue the functioning of the Gym until the expiration of membership of customers without incurring any further liabilities.”

After dissolution, Defendant 1 has nothing to do with the partnership firm or the gym. As such, even on the date when the present suit was instituted, Defendant 1 was a stranger to the gym, as well as to the alleged trade mark infringement. Consequent on the dissolution of the firm, Defendant 1 claims to have started an independent gym under the name MMAAK, some distance away from the earlier gym. As such, Defendant 1 had no objection to the plaintiff’s claiming exclusivity in the mark “CrossFit”, as he had no further association with the mark.

14. In the circumstances, it was prayed, in the reply, that the application be dismissed.

15. The plaintiff has, in its affidavit-in-reply to the Defendant 1’s affidavit, made various assertions against the said defendant. Not all of them are relevant, as the present application concerns itself only with the allegation of disobedience, by Defendant 1, of order dated 8 July 2021 passed by this Court. The acts of Defendant 1 after 8 July 2021 alone, therefore, need concern us in the present application.

16. The plaintiff has, in its affidavit, pointed out that, even after 28 May 2019, when the partnership was purportedly dissolved, and Defendant 1 purportedly ceased to have any concern with the gym, the website of the gym, www.sfccrossfit.com, even as on 20 March 2021, reflected the name of Defendant 1 and provided the contact details of Defendants 1 and 2 as the persons to be reached by those who were interested in establishing contact with the gym. The foot of the website contained the recital “Copyright SFC Crossfit 2021”, indicating that the website had been updated in 2021, even after which Defendant 1 was reflected as one of the persons who were controlling the gym.

17. The affidavit of plaintiff, therefore, seeks to completely discredit the attempt of Defendant 1 to distance himself from the allegations of violation of the order dated 8 July 2021 passed by this Court. In respect of its stand, the plaintiff has also placed certain further documents on record, after having been granted leave, by this Court, to do so, on 12 May 2023.

18. I have heard Mr. Saif Khan, learned Counsel for the applicant/plaintiff and Mr. Akash Vajpai, learned Counsel for Defendant 1, as well as Defendant 1 who appeared in person, at length, on the present application.

19. Mr. Khan seeks to characterize the attempt of Defendant 1 to disavow any allegation of disobedience of the order dated 8 July 2021 passed by this Court, as a lot of hot air and nothing else. He submits that the purported dissolution of the partnership vide dissolution deed dated 28 May 2019, is merely a façade. Even after the purported dissolution, submits Mr. Khan, Defendant 1 has actively associated himself with the gym and its running. The material on which Mr. Khan relies, to support his stand, is the following:

(i) In his reply dated 20 April 2018, to the e-mail dated 29 March 2018, addressed by the plaintiff to Defendant 1, Defendant 2, through counsel, acknowledged that Defendant 1 was a renowned fitness trainer of south India and the founder of the fitness club functioning under the name and style “SFC”.

(ii) The website of the defendants, even as late as on 20 March 2021, reflected the names and mobile numbers of the defendants as the contact persons for the gym. The caption “copyright SFC CROSSFIT 2021” at the foot of the page indicates that the website had been updated in 2021.

(iii) The screenshot of the Just Dial webpage of SFC CROSSFIT, taken on 2 March 2022, also reflected the only phone number provided under the name “SFC CROSSFIT” to be the phone number of Defendant 1, 8943142187.

(iv) Consequent to the passing of the order by this court, the gym had changed its name from “SFC CROSSFIT” to “SFC Calicut”.

(v) Mr. Khan has relied on the following pages from the Facebook page of “SFC Calicut”:

20. Mr. Khan seeks to draw the attention of the court to the following features, in these pages, which according to him, establish the complicity of Defendant 1, even as on date:

(i) The post dated 22 April 2023, which contains the ‘Eid greetings’, reflected the phone number of Defendant 1, and was also “liked” by him.

(ii) The Facebook post dated 8 July 2022, specifically advertised the MMAAK gym of Defendant 1 and invited persons to the soft launch of its website, with the accompanying slogan “Get fit with CrossFit”.

21. As against this, the contention of Defendant 1 is that he was never served with summons either in the suit or the order dated 8 July 2021, of which violation is alleged. He claims to have come to learn of the order dated 8 July 2021 only when, on 31 August 2022, the learned Local Commissioner visited the gym and contacted him. Any alleged disobedience prior to that date, therefore, is, in the submission of Mr. Akash Vajpai, completely irrelevant.

22. Without prejudice, Mr. Vajpai contends that, in fact, his client had nothing to do with the gym, or with SFC CROSSFIT, after 28 May 2019 when the partnership was dissolved. Once the partnership was dissolved, he submits that Defendant 1 ceased to have any association with the gym or any control over its website. If, therefore, the name or the phone number of his client continued to be reflected on the SFC CROSSFIT website, that was not attributable to his client. At the highest, it is contended that Defendant 1 could be said not to have taken steps to ensure that his name no longer figured on the website of SFC CROSSFIT. Not being associated with the gym any further, Mr. Vajpai submits that his client was least interested in the website of the gym, or what was stated on it. This submission, submits Mr. Vajpai, also applies to the reflection of the phone number of Defendant 1 on the Just Dial page of SFC CROSSFIT as well as in its Facebook post.

23. The only post on the basis of which any kind of connection between the Defendant 1 and the use of the mark CrossFit, after passing of the order dated 8 July 2021, could be drawn, submits Mr. Vajpai, is the advertisement for the MMAAK “soft launch” dated 4 July 2022. Inasmuch as, till that date, the Defendant 1 had not even been served with the copy of the order dated 8 July 2021, of which disobedience is being alleged, Mr. Vajpai submits that the said advertisement cannot constitute a basis to mulct Defendant 1 with punitive proceedings under Order XXXIX Rule 2A of the CPC.

24. I have considered the submissions made by both sides and applied myself to the material on record, to decide whether a case for proceeding against Defendant 1 under Order XXXIX Rule 2A of the CPC can be said to exist.

25. In Food Corporation of India v. Sukh Deo Prasad1, the Supreme Court has held that the power exercised under Order XXXIX Rule 2A of the CPC is akin to the power of civil contempt under the Contempt of Courts Act, 1971 and that disobedience has to be proved by the person who complains of disobedience “beyond any doubt”. The power is required to be exercised with great caution and responsibility and there is no place, while exercising the said power, for “surmises, suspicions and inferences”.

26. On the aspect of whether disobedience, for the purposes of initiating punitive action under Order XXXIX Rule 2A was necessarily required to be willful, there is, however, a difference of opinion, with the judgment in U.C. Surendranath v. Mambally’s Bakery2 holding in the affirmative and the decision in Amazon.Com NV Investment Holdings LLC v. Future Retail Ltd3 opining otherwise. That latter aspect does not, however, particularly concern us in the present case.

27. There has, therefore, to be strict and irrefutable proof of disobedience, for punitive action to follow under Order XXXIX Rule 2A of the CPC. Proof of contumacious disobedience has to exist, beyond any doubt. The court can not presume or conjecture disobedience. In its zeal to uphold its majesty and ensure implementation of rule of law, the court cannot hold a person guilty of violation of its orders and proceed punitively against him merely because the circumstances give rise to a strong suspicion of the order of the court having been disobeyed. The principle that suspicion, howsoever strong, can be no substitute for proof may, in my considered opinion, be justifiably be invoked, while dealing with application under Order XXXIX Rule 2A of the CPC.

28. I have, in my earlier orders passed in the present matter, had occasion to observe that the assertions of Mr. Khan did cast a cloud on the bonafides of Defendant 1 and give rise to a strong suspicion that Defendant 1 had in fact a lot to answer for. Having, however, heard learned Counsel at length, I am unable to persuade myself that the facts of the present case justify conviction and punishment of Defendant 1 for having violated the order passed by this Court.

29. There are, principally, two reasons for my so holding.

30. Firstly, there is no satisfactory proof of Defendant 1 having been served in the present matter at any time prior to the visit by the learned local commissioner at the premises of the gym on 31 August 2022. The contention of Defendant 1 is that the learned local Commissioner contacted him telephonically at the time of visit, which is when he came to know of the order passed by this Court. It is not in dispute that, prior to the visit of the learned local Commissioner, summons, or notice, was served only at the email ID of the SFC Crossfit gym. I see no justifiable ground to reject the contention of Defendant 1 that, having dissociated himself with the gym and its activities after 28 May 2019, the email ID of the gym cannot be regarded as his contact email ID. Any act committed prior to 31 August 2022 cannot, therefore, amount to disobedience, by Defendant 1, of the order dated 8 July 2021.

31. The second reason why I am unable to hold Defendant 1 guilty of disobedience of the order dated 8 July 2021 passed by this Court is that there is actually no conclusive proof, beyond reasonable doubt, of Defendant 1 having associated himself with the activity of gym after the dissolution of the partnership on 28 May 2019.

32. To bring home the allegation of continued association with Defendant 1, with the gym, Mr. Khan relies on three factors. The first is that, admittedly, the gym was set up owing to the professional expertise of Defendant 1, who was effectively running the gym, as per the recitals in the partnership deed dated 10 December 2016 itself. If the gym was continuing to run, therefore, Mr. Khan submits that it could only be under the tutelage of Defendant 1. The second is that the dissolution deed itself states that, in so far as existing clients of the gym were concerned, the gym would continue to function. The third factor is the on-the-spot proceeding accompanying the report of the learned Local Commissioner extracted in para 11 supra.

33. None of these contentions, in my opinion, can suffice for this Court to conclusively hold that, on or after 8 July 2021, when the order was passed by this Court, Defendant 1 was still associated with the gym. The mere fact that the gym may have been set up, or even was surviving, on the basis of the professional expertise of Defendant 1, cannot justify a finding, by this Court that, absent Defendant 1, the gym would cease to exist. Equally, the mere recital in the Deed of Dissolution, that the gym would continue to function for its existing clients, does not throw any light on the period till which it so continued to function, or whether it was continuing to function under Defendant 1.

34. The passages from the on-the-spot proceeding report of the learned local Commissioner extracted in para 11 supra, on which Mr. Khan places reliance, too, are insufficient to justify a conclusive finding that Defendant 1 continued to be running the gym or using the impugned mark “CROSS FIT” in violation of the order dated 8 July 2021 passed by this Court. At the highest, they can only indicate that Defendant 1 informed the plaintiff that the gym was still functioning and that certain persons in the gym provided the telephone number of Defendant 1. The standard of proof required by Order XXXIX Rule 2A of the CPC cannot be said to have been met thereby.

35. I cannot, equally, blindly brush aside the contention of Mr. Vajpai that, if the name and phone number of Defendant 1 continued to be reflected on the website of the gym, that would not indicate any association of Defendant 1 with the gym. In order to reject the said contention, I would also have to hold that the deed of dissolution of the partnership dated 28 May 2019 was a sham document. I see no basis to do so. There is no material on record, on the basis of which I can presume the formation and dissolution of the partnership to have been mere paper exercises. If the deed of dissolution of the partnership is to be accepted as genuine, the sequitur would naturally be that, on or after 28 May 2019, Defendant 1 no longer continued to be a partner in SFC CROSSFIT. If that is so, the continued reflection of his phone number on the website of the gym, or on Just Dial or Facebook web pages, cannot be the basis for the court to infer continued association of Defendant 1 with the gym. Defendant 1 may have been remiss in seeing that his contact details were no longer reflected on the website of the gym, but that cannot be a basis for this Court to hold Defendant 1 to be guilty of disobedience of the order dated 8 July 2021.

36. Even if it were to be presumed that Defendant 1 was conscious of the fact that his phone number continued to be reflected on the web page of the gym, and took no steps to remove it, that also cannot suffice, in my opinion, for this Court to return a finding of disobedience, by Defendant 1, of the directions contained in the order dated 8 July 2021 passed by this Court. It is essential that the court reminds itself that what is being examined in the present case is whether Defendant 1 can be held guilty of violating the directions contained in the order dated 8 July 2021, passed by it, and, absent convincing proof of such violation, other considerations cease to be of relevance.

37. In view of the aforesaid, I am unable to bring myself to hold that Defendant 1 can be found guilty of having disobeyed the order dated 8 July 2021 passed by this Court, or to punish Defendant 1 in that regard, within the legitimate peripheries of Order XXXIX Rule 2A of the CPC.

38. The application is accordingly dismissed.

C. HARI SHANKAR, J.
OCTOBER 9, 2023
dsn
1 (2009) 5 SCC 665
2 (2019) 20 SCC 666
3 (2022) 1 SCC 209
—————

————————————————————

—————

————————————————————

CS(COMM) 251/2021 Page 19 of 19