Delhi High Court: In a case wherein, an application was filed by the plaintiff under Order 39 Rule 2-A of the Civil Procedure Code, 1908 (‘CPC’), C. Hari Shankar, J.* opined that there had to be strict and irrefutable proof of disobedience for punitive action to follow under Order 39 Rule 2A of the CPC and since there was no conclusive proof against Defendant 1, the present case did not justify the conviction and punishment of Defendant 1 for violating the directions contained in order dated 08-07-2021.
Background
In the instant case, the plaintiff alleged that the defendants had violated the directions contained in the order dated 08-07-2021, whereby the defendants were injuncted during the pendency of the suit from using the mark ‘CrossFit’ or any other identical mark deceptively similar to the plaintiff’s mark.
The plaintiff carried out multiple investigations at defendants’ premises which revealed that the defendants were continuing to use the impugned mark ‘SFC CROSSFIT’ and the impugned logo 
Thus, the plaintiff in its application prayed that punitive action should be taken against Defendant 1 under Order 39 Rule 2A of the CPC.
Accordingly, in order to ascertain the exact extent and nature of violation, the 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. The Local Commissioner filed his report, according to which three flex hoardings, stickers affixed at the bottom of the stairs and the front page of the six membership application forms were found at the premises which were seized and taken into custody by the Local Commissioner.
However, Defendant 1 contended that he never received any summons or notice in the present matter and further stated that vide partnership deed dated 10-12-2016, he was a partner with six others in the firm ‘SFC CROSSFIT’ to provide gym services at the premises. The said partnership was further dissolved vide deed of dissolution dated 28-05-2019, and after the dissolution, Defendant 1 had nothing to do with the partnership firm or the gym.
Analysis, Law, and Decision
The Court relied on Food Corporation of India v. Sukh Deo Prasad, (2009) 5 SCC 665, wherein it was held that the power exercised under Order 39 Rule 2A of the CPC was similar to the power of the civil contempt under the Contempt of Courts Act, 1971 and the disobedience had to be proved ‘beyond any doubt’ by the person who complained of such disobedience.
The Court further relied on U.C. Surendranath v. Mambally’s Bakery, (2019) 20 SCC 666 and opined that there had to be strict and irrefutable proof of disobedience for punitive action to follow under Order 39 Rule 2A of the CPC. The Court further opined that “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 be justifiably be invoked while dealing with application under Order 39 Rule 2A of the CPC”.
The Court opined that the present case did not justify the conviction and punishment of Defendant 1 for violating the order dated 08-07-2021, because there was no satisfactory proof that before the visit by the Local Commissioner, Defendant 1 was served with the summon. However, regarding the summon being served at the email ID of the SFC CrossFit Gym, the Court agreed with the respondents contention that since, Defendant 1 had dissociated himself with the gym, and its activities after 28-05-2019, the email ID of the gym could not be regarded as his contact email ID. Moreover, the Court opined that there was no conclusive proof that Defendant 1 had associated himself with the activity of gym after dissolution of partnership.
Further, regarding the contention that name and phone number of Defendant 1 continued to be reflected on the gym’s website, the Court opined that even if Defendant 1 was conscious of these facts and took no steps to remove it, that also did not constitute as disobedience. The Court opined that if there was no convincing proof of violation of the directions contained in order dated 08-07-2021, other considerations cease to be of relevance.
Thus, the Court opined that Defendant 1 was not guilty of disobeying the order dated 08-07-2021, therefore the Court dismissed the application and held that it could not punish Defendant 1 within legitimate peripheries of Order 39 Rule 2 of the CPC.
[Cross Fit LLC v. Renjith Kunnumal, 2023 SCC OnLine Del 6261, decided on 09-10-2023]
*Judgment authored by- Justice C. Hari Shankar
Advocates who appeared in this case :
For the Plaintiff: Saif Khan, Shobhit Agrawal and Prajjwal Kushwaha, Advocates
For the Defendants: Akash Vajpai and Sudheesh K.K, Advocates