M/S Friends Overseas vs Swadi Product U.K. Ltd. & Ors.
2012 Latest Caselaw 3779 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+I.A. No. 6094/2010 (u/O 39 R 1 & 2 r/w Sec. 151 CPC by
Plaintiff) and I.A. No. 8683/2010 (u/O 39 R 4 CPC r/w Sec. 151
CPC by defendant no. 1) in CS(OS) 889/2010


                                           Reserved on 2nd May, 2012

                                             Decided on 2nd July, 2012

M/S FRIENDS OVERSEAS                                   ..... Plaintiff
                  Through:               Mrs. Pratibha M Singh, Mr.
                                         Jaspreet Singh Kapur and
                                         Mr.      Ashwin       Kumar,
                                         Advocates
                    Versus

SWADI PRODUCT U.K. LTD. & ORS.         ..... Defendants
                  Through: Mr. Gurvinder Pal Singh, Mr.
                            Gaurav B., Mr. Nitin Monga,
                            Mr. Mishal Viz and Mr.
                            Mahender, Advocates
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK


A.K. PATHAK, J.

1. Plaintiff has filed this suit for permanent injunction

restraining infringement of copyright, unfair competition, passing

off, trade dress infringement and damages/rendition of accounts of

profits, against the defendants.

2. Mr. Pamaljeet Singh is sole proprietor of M/s Friends

Overseas (plaintiff). In fact, sole proprietorship firm has no

separate legal entity and is a creation of its sole proprietor, thus, any

reference made to sole proprietorship firm shall mean and include

sole proprietor and vice versa. It appears that initially defendant no.

1-company was formed by one Mr. Amrik Singh, who is brother of

Mr. Pamaljeet Singh, for marketing the products manufactured by

the plaintiff under the trade name "SWADI", in United Kingdom.

Earlier defendant no. 1 was known as M/s Golden Trading

Company, United Kingdom. Plaintiff had been manufacturing and

exporting the goods under the mark "SWADI" to defendant no. 1 in

United Kingdom. Some disputes arose between the brothers which

led to stoppage of import by defendant No.1 from the plaintiff.

Later on, defendant no. 2 has been established by Mr. Kuldeep

Singh, another brother of the plaintiff. Now defendant no.2 is

manufacturing the same products under the mark "SWADI" and

exporting to the defendant no.1.

3. Mr. Ajay Narang is sole proprietor of defendant no. 3-M/s

Frontline Pack World. Earlier, M/s Friends Overseas was a

partnership firm in which Mr. Ajay Narang, proprietor of defendant

no. 3, was one of the partner. Partnership firm was dissolved vide

Deed of Dissolution dated 4th March, 2008. Thereafter, defendant

no. 3 started sole proprietorship firm and is now supplying

packaging material to defendant no.2.

4. It is alleged in the plaint that the plaintiff is engaged in the

business of trading and export of rice, pulses, spices atta, maida,

suji, besan, tea, coffee etc. under the trade mark "SWADI

HOMEMADE". Plaintiff had been exporting the said products

under the said name/mark/label to M/s Golden Trading Company,

U.K., now defendant no.1. In turn, defendant no. 1 used to market

the said goods in United Kingdom. Some differences arose between

the plaintiff and defendant no.1 over the payments resulting in

stoppage of export of goods by the plaintiff to defendant no.1.

However, owing to the superior quality of plaintiff‟s goods as well

as popularity of plaintiff‟s mark "SWADI" in United Kingdom,

defendant no. 1 has changed the name of its company to "SWADI

HOMEMADE PRODUCT" and further established defendant no. 2

in India through his other brother Mr. Kuldeep Singh. Defendant

no. 2 started purchasing packaging material from erstwhile partner

of the plaintiff, that is, defendant no.3. Defendants have started

using the mark "SWADI HOMEMADE" with malafide intentions.

Defendants have misappropriated the plaintiff‟s well known

mark/label "SWADI HOMEMADE", inasmuch as, copied the

artistic get up, layout and trade dress of the plaintiff‟s product.

5. The mark "SWADI" as well as "SWADI HOMEMADE" was

coined by the plaintiff for manufacturing and exporting the

plaintiff‟s goods in the year 2004. However, actual exports began

in the year 2006. Plaintiff had applied for registration of the

mark/label "SWADI" vide application no. 1512369 dated 12th

December, 2006 in respect of goods falling under Class 30 and the

said application is pending for registration before the Trade Mark

Registry. Plaintiff has spent considerable amount in advertisements

in relation to its products under the said mark/label, as a result

whereof, marks "SWADI" and "SWADI HOMEMADE" have

become synonymous to the products of plaintiff, inasmuch as, have

attained enormous reputation and goodwill in India as well as

abroad. Purchasers recognize products of plaintiff by the trade

mark "SWADI HOMEMADE". Plaintiff has also advertised its

products through its website www.swadiproducts.com. Plaintiff is

the owner of copyright in the original artistic work in respect of

packaging/label/logo relating to said marks. The logo was designed

by the proprietor of plaintiff; whereas packaging was designed by

one Mr. Sanjay Manchanda, who was engaged by the plaintiff for

the said purpose. It is alleged that the defendants have adopted the

identical mark in order to encash the goodwill and reputation of the

plaintiff‟s products sold under the said mark and this act of the

defendants amounts to passing off the goods of the defendants as

that of plaintiff. Defendants have adopted the trademark/logo as

well as label in order to ride on the reputation of the plaintiff.

6. Along with the plaint an application under Order 39 Rules 1

and 2 read with Section 151 of the Code of Civil Procedure, 1908

("CPC", for short) has been filed. Vide ex parte order dated 7th

May, 2010 defendants have been restrained from using the trade

mark "SWADI HOMEMADE" or any deceptively similar trade

mark as that of plaintiff in respect of "chaki atta". The said order is

still continuing. Defendant nos. 2 and 3 have filed I.A. No.

8683/2010 under Order 39 Rule 4 CPC for vacation of the ex-parte

injunction order. By this order I shall dispose of both the above

referred applications.

7. Case of the defendants is that the mark "SWADI

HOMEMADE" in respect of rice, pulses, spices, atta, maida, suji

besan etc. is descriptive word having laudatory significance to the

nature and the character of the said products and is not registrable

under Section 9(1) (d) of the Trade Mark Act, 1999 (hereinafter

called as "the Act"); plaintiff cannot claim exclusive right in respect

of the said mark. The word "SWADI" is very common word and is

extensively used. The word "SWADI" means „tasty‟. Defendants

allege that the plaintiff started exporting inferior quality edible

products keeping huge profit margins as a result whereof, defendant

no. 1 stopped all its business dealings with the plaintiff with effect

from 5th January, 2010. Thereafter, defendant no. 1 has started

dealing with defendant no. 2 with effect from 5th January, 2010 and

has authorized the defendant no.2 to manufacture, buy in bulk, re-

pack, and export-import from India edible products, that is, rice,

cereals, pulses, phenni, flour etc. under the trademark "SWADI".

Defendant no.1 has now started importing the abovesaid products

from the defendant no.2.

8. Defendant no. 1 works for gain in United Kingdom. M/s

Friends Overseas (plaintiff) was established under the instructions

as well as from the finances provided by Mr. Amrik Singh Panesar,

who is one of the directors of defendant no.1. M/s Friends

Overseas was formed in India only for the purpose of buying in

bulk, repackaging and then exporting edible products to defendant

no.1. It was a family arrangement between the two brothers.

Plaintiff was founded only to export the goods of defendant no. 1.

Plaintiff has not exported any product by the name "SWADI

HOMEMADE" to anyone else except defendant no.1 prior to 5th

January, 2010. Even on the plaintiff‟s packaging it was clearly

mentioned that the goods were being marketed by M/s Golden

Trading Company, England previously known as defendant no.1

and exported by M/s Friends Overseas. Even now, on the packaging

it has been categorically mentioned that the product is marketed by

"Swadi Product U.K. Ltd., England and packed by M/s Golden

Trading Company, India (defendant no.2). It is further alleged that

defendant no.1 being well settled and financially very sound in

United Kingdom had been helping his brothers in India to establish

themselves in the business of export and import of edible products.

However, defendant no.1 has to stop buying the goods from the

plaintiff as the quality of the goods deteriorated. It is denied that

the plaintiff‟s products have acquired enormous goodwill and

reputation. It is also denied that defendants have colluded with

each other with a common and ill-motivated intent to cheat/deceive

the plaintiff by riding piggy back on the goodwill and reputation of

plaintiff. It is further denied that the plaintiff has advertised its

product through its website www.swadiproducts.com or otherwise

and has incurred huge expenditure.

9. Learned counsel for the defendants has vehemently

contended that the word "SWADI" is a Punjabi dialect for

„Swadisht‟ in Hindi and „tasty‟ in English. The mark "SWADI"

being descriptive no one can claim monopoly over the same nor can

seek exclusive right of user of such a mark. Reliance has been

placed on Stokely Van Camp, Inc. and Anr. versus Heinz India

Private Ltd., MIPR 2010(3) 273 (DB), Rich Products

Corporation and Anr. versus Indo-Nippon Foods Limited RFA

(OS) No.37/2010 (DB), Rhizome Distilleries P. Ltd. and Ors.

versus Pernod Ricard S.A. France and Ors. 166 (2010) DLT 12

(DB), Marico Limited versus Agro Tech Foods Limited 174

(2010) DLT 279 (DB), Cadila Healthcare Ltd. versus Gujarat

Co-operative Milk Marketing Federation Ltd. and Ors. 2009

(41) PTC 336 (DB), Toyota Jidosha versus Deepak Mangal

2010 (43) PTC 161, Manish Vij and Ors. versus Indra Chugh

and Ors., 97 (2002) DLT 1, J.K. Oil Industries versus Adani

Wilmar Limited 2010 (42) PTC 639 (Del), Chronicle

Publications (P) Ltd. versus Chronicle Academy Pvt. Ltd. 2010

(44) PTC 78 (Del), Online India Capital Co. Pvt. Ltd. and Anr.

versus Dimensions Corporate 2000 VAD (Delhi) 860, Merisant

Company 2 Sarl and Anr. versus Equal Minerals and Anr. IA

4196 of 2003 in CS(OS) No. 895 of 2005, Sunstar Overseas Ltd.

versus Rameshwar Dass Garg 2011 (46) PTC 89, Bling Telecom

Pvt. Ltd. versus Micromax Informatics Limited 2011 (45) PTC

188 (Del), Vijay Kumar Ahuja versus Lalita Ahuja 95 (2002)

DLT 3, NNE Pharmaplan India Ltd. versus CGMP

Pharmaplan Pvt. Ltd. and Ors. 2010 (43) PTC 66 (Del), Sun F

and B Business versus 21st Hospitality Private Limited IA

No.8909/2009 in CS(OS) No. 1273/2009, Rajesh Chheda, Prop.

of Shubham Plywood versus Shubham Plywood Park through

its proprietor, P.K Loohda (Jain) 2011 (45) PTC 315 (Bom),

I.T.C. Limited versus G.T.C. Industries Ltd. and Ors., 2008 (2)

Bom CR 132, Asian Paints Limited versus Home Solutions

Retail (India) Limited (2007) 109 BOMLR 1819, Jhaveri

Industries versus Majethia Masala 2007 (34) PTC 548 (Bom),

United Brothers versus Aziz Ulghani 180 (2011) DLT 260,

Hindustan Development Corpn versus Deputy Registrar of

Trademarks AIR 1955 Calcutta 519, Skyline Education

Institute versus SL Vaswani (2010) 2 SCC 142, Sant Kumar

Mehra versus Ram Lakhan (IA 9321/98 in Suit No.2255/98),

Manipal Housing Finance Syndicate Ltd. v Manipal Stock and

Share brokers (1999) 98 Comp Cas 432 (Madras).

10. During the course of hearing, it has been pointed out that

defendant no.1 has itself got the mark "SWADI" registered with the

Trade Mark Registry, United Kingdom. In view of this, I am of the

opinion that it does not lie in the mouth of defendants to allege that

the plaintiff‟s mark "SWADI" can be used by them, being

descriptive in nature. In Automatic Electric Limited versus R.K.

Dhawan & Anr. 1999 PTC (19) 81, the mark in dispute was

"DIMMER DOT". Defendant took a plea that the word

"DIMMER" being generic expression plaintiff could not have

claimed monopoly over the said mark. A Single Judge of this Court

held that since the defendant itself has sought to claim trade

proprietary right and monopoly in "DIMMER DOT", it does not lie

in their mouth to say that the word "DIMMER" is a generic

expression. This judgment has been accepted with approval by the

Division Bench in Indian Hotels Company Ltd. & Anr. versus

Jiva Institute of Vedic Science & Culture, 2008 (37) PTC 468

(Del.). It was held that since the appellant had itself applied for

registration "JIVA" as a trademark and cannot, therefore, argue that

the mark is descriptive. The judgments relied upon by the

defendants are in the context of different facts and are of no help to

the defendants. In the light of above discussions, argument of

defendants‟ counsel on this point is rejected.

11. From the facts narrated in the aforegoing paragraphs it

appears that the adoption of mark "SWADI HOMEMADE" by the

defendants is not honest and is for malafide reasons. Plaintiff

commenced its business of manufacturing, marketing and exporting

edible products under the mark "SWADI" in the year 2004/2006.

Plaintiff had been exporting its goods to defendant no.1 in United

Kingdom. In turn, defendant no. 1 had been distributing, marketing

and selling the said products in the said country. Even after

dissolution of the firm sometime in the year 2008 plaintiff

continued to get the packaging material prepared/printed from the

defendant no.3. The goods manufactured by the plaintiff used to be

packed in the said packaging and used to be exported to defendant

no.1. After the differences arose between the plaintiff and

defendant no.1, defendant no. 1 has stopped importing the goods

from the plaintiff. It further appears that the defendants have

ganged up together and started manufacturing and packaging the

goods in the similar packaging purchased from defendant no. 3

under the mark "SWADI HOMEMADE", since the said mark had

attained enormous goodwill and reputation in United Kingdom

where the goods manufactured by the plaintiff used to be marketed

by the defendant no.1. Logo, color scheme, printing etc. of the

earlier packaging of the plaintiff has been copied to give an

impression that there was no difference in the present product vis-à-

vis the earlier products manufactured by the plaintiff. The above

circumstances clearly indicate that the defendants have connived

with each other and in pursuance thereof defendant no. 2 has been

established and has started manufacturing and exporting the goods

under the mark "SWADI" after buying similar packaging from the

defendant no. 3; in turn, defendant no. 1 continues to distribute,

market and sell the said products in United Kingdom. In my view,

once adoption of mark of plaintiff is found tainted and dishonest the

injunction must follow. In such circumstances, plea of plaintiff‟s

acquiescence or delay in initiating legal action will be

inconsequential.

12. Registration of the mark "SWADI" in favour of defendant

no.1 with the Trade Mark Registry, United Kingdom during the

pendency of the suit or for that matter even earlier thereto, will not

come in the way of plaintiff seeking injunction as regards this

country is concerned. It is the plaintiff who had been manufacturing

the goods and exporting it to defendant no.1 in the United Kingdom

and in turn, defendant no.1 had been marketing, distributing and

selling the same in that country. The registration of the mark in

United Kingdom would not thus be relevant as regards

manufacturing, marketing, distribution and selling of goods by the

plaintiff under the mark "SWADI" in India is concerned.

Withdrawal of opposition in the United Kingdom will also not

affect the right of the plaintiff as regards its business in India is

concerned where it is the prior user of the mark "SWADI" in

respect of the goods in question. Plaintiff is the prior user of the

mark "SWADI" and its rights are protected under the common law,

even against the subsequent registered proprietor. In Century

Traders versus Roshan Lal Duggar & Co. & Ors. AIR 1978

Delhi 250, a Division Bench of this Court has held that in order to

succeed in a passing off action appellant has to establish user of the

mark prior in point of time than the impugned user by the

respondent. The registration of the mark or similar mark prior in

point of time to user by the plaintiff is irrelevant in an action for

passing off and the mere presence of the mark in the register

maintained by the trade mark registry does not prove its user by the

persons in whose names the mark is registered and is irrelevant for

the purposes of deciding the application for interim injunction.

13. In my view, plaintiff being prior user of the mark has got

every right in common law to protect its right and to seek restraint

order against the defendants not to pass off their goods as that of

plaintiff. In this case, from the material placed on record it is clear

that the defendants have not only adopted the mark "SWADI" but

have also adopted the label, logo, color scheme etc. of the

packaging. Defendants are, thus, guilty of infringing the copyright

of the plaintiff in respect of the logo, label, packaging etc. In

Burroughs Wellcome ( India) Ltd. versus Uni-Sule Pvt. Ltd.

1999 PTC 188, it has been held that there is no provision under the

Act which deprives the author of the rights on account of non

registration of the copyright. There is nothing in the Act to suggest

that the registration is condition precedent to the subsistent of the

copyright or acquisition of copyrights or ownership thereof or for

relief of infringement of copyright. In this case, a perusal of

packaging material of the plaintiff as well as defendants, placed on

record, makes it clear that defendants have copied the same, thus,

are guilty of infringement of copyright of the plaintiff over the

packaging.

14. Learned counsel has further contended that the defendant no.

1 has no presence in India and is carrying on its business in the

United Kingdom, thus, suit is without any cause of action. Section

56 of the Act has no applicability in the facts of the present case, as

the plaintiff has failed to place on record any material to suggest

that it is using the said mark in India. I do not find much force in

this contention of the learned counsel for the defendants. Plaintiff

is based in India. Admittedly, it had been manufacturing the goods

and exporting the same to defendant no. 1 in United Kingdom, thus,

it cannot be said that plaintiff is not engaged in any manufacturing,

distribution or marketing activities in India. Plaintiff is based in

India and was manufacturing its products in India itself and was

thereafter exporting the same to defendant no.1 in United Kingdom,

inasmuch as, it has been specifically averred in the plaint that

plaintiff had acquired goodwill and reputation in respect of the

mark "SWADI" in India and abroad. Presence of product of the

plaintiff in India under the mark "SWADI", thus, cannot be, prima

facie, disputed. Thus, it cannot be said that Section 56(1) of Act is

not attracted in this case. In Cadila Pharmaceuticals Limited,

Mumbai versus Sami Khatib of Mumbai and Medley

Pharmaceuticals Limited MIPR 2011 (2) 0224, it was held that

Section 56 of the Act covers not only the goods sold in India but

also the goods being exported. In para 57 it was held as under:-

There is nothing to suggest that if an infringing mark is only applied to products to be exported from India, the proprietor of the mark or the general public, does not have any interest which requires protection. There are innumerable reasons why and circumstances in which it could be said that even in a passing off action, the proprietor of a mark and the general public require protection in respect of the goods to be exported from India bearing the infringing mark. Merely because goods bearing an impugned mark are only exported it does not follow either as a question of law or even of fact that the proprietor of the mark is not likely to suffer substantial damage to his property in the goodwill. The assumption that goods that are exported are not exposed to residents or citizens of this country is fallacious. The mark is exposed by the unauthorized user thereof to various persons, even within the country, including manufacturers of the labels containing the mark, the manufacturers of cartons on which the labels may be applied and the containers in which the products are sold, the transporters of the goods and the various authorities that deal with the goods before they are actually exported and in the course of export. The process of inspection, quality control and export would involve the exposure of the infringing mark to employees, workers, proprietors and a variety of other persons.

15. In Kirorimal Kashiram Marketing & Agencies Private

Limited versus Sachdeva & Sons Industries Pvt. Ltd. 2009 (39)

PTC 142 (Del.), a Single Judge of this Court has held that export

under Section 56 of the Act is use of the trade mark. There is no

restriction on the plaintiff exporting its goods. If the plaintiff were

to export its goods, the buyers in different countries are similarly, as

in this country, likely to be confused by similar/deceptively similar

trade mark. It also cannot be said that the present suit is without

any cause of action merely because defendant no. 1 is not marketing

its products in India under the trade mark "SWADI" for the simple

reason that the defendant no. 2 has been set up to manufacture,

products under the mark "SWADI" and goods are exported under

the said mark by the defendant no. 2 to defendant no.1, inasmuch

as, defendant no.3 is printing and supplying packaging material to

the defendant no.2. Manufacturing and packaging in India will

attract Section 56 of the Act. Alberto Co. versus R.K. Vijay

166(2010) DLT 391, World Tanker Carrier versus SNP

Shipping AIR 1998 SC 2330 and Crompton Greaves Ltd. versus

Salzer Electronics Limited 2011 (46) PTC 450 Madras are in the

context of different facts and of no help to the defendants.

16. I also do not find much force in the contention of learned

counsel that since the trade mark "SWADI" was used by the

partnership firm it remains the property of said firm and not of the

plaintiff individually; Dissolution deed is silent about the status of

the trade mark, thus, defendant no. 3 continues to be joint owner of

the mark "SWADI", inasmuch as, in the affidavit filed by the

plaintiff, even after dissolution, he has shown the plaintiff as a

partnership firm. As per the dissolution deed dated 4th March, 2008

all the assets and liabilities of the dissolved firm vests in Mr.

Pamaljeet Singh, thus, it cannot be said that defendant no. 3 who

has walked out of the partnership firm after dissolution will still

have any surviving right over the trade mark "SWADI". In

Spalding & Bros. versus A.W. Gamage Ltd. (1915) 32 RPC 273,

it was held that in a partnership firm Trade Marks are always

considered to be an integral part of the goodwill of the business and

are saleable. In terms of the dissolution deed all the assets and

liabilities of the firm vest in the surviving partner, that is, Mr.

Pamaljeet Singh. Trade Mark is also one of the assets of the

dissolved firm and vests exclusively in plaintiff. Accordingly, it

cannot be said that the defendant no. 3 is joint owner of the mark

"SWADI". I do not find much force in the contention of learned

counsel for the defendants that the injunction order shall be vacated

in view of non-compliance of order under Order 39 Rule 3 CPC.

Affidavit of compliance has been placed on record. Merely because

certain pages of the plaint sent to the defendants were found

incomplete by itself would not be sufficient to vacate the injunction

order. Plea of suppression of material facts also does not hold much

water. From the discussions made hereinabove, it is clear that the

plaintiff has succeeded in disclosing a, prima facie, case of

infringement of copyright since packaging material placed on

record indicates that defendants have copied the packaging

including logo, get up, layout, color scheme, printing etc. of the

plaintiff. As regards trade mark is concerned the same mark has

been adopted. This act of the defendants is likely to cause

confusion and deception in the mind of unwary consumers.

Defendants have placed reliance on Ramdev Food Products Pvt.

Ltd. versus Arvindbhai Rambhai Patel 2006 (8) SCC 726,

Reckitt & Collman versus Borden Inc 1990 (RPC) 341, SBL

Ltd. versus Himalaya Drug (1997) 2 Arb Lr 650 Delhi,

Laxmikant versus Patel AIR 2002 SC 275, Sun F and B

Business versus 21st Hospitality Private Limited IA

No.8909/2009, Sakalain Beghjee versus BM House (India) Ltd.

2002 (24) PTC 207, Merisant Company 2 Sarl and Anr. versus

Equal Minerals and Anr. IA 4196 of 2003, Century 21 Real

Estate versus Century 21 Main Realty MIPR 2010 (2) 43, Asia

Pacific Breweries versus Superior Industries Ltd. IA

No.4680/2002 in CS No.946/2002, Jolen Inc versus Assistant

Registrar 2005 (30) PTC 542 (IPAB), Westin Hospitality

Services versus Caeser Park Hotels 1998 (3) CTC 149, Sears

Roebuck versus Happy House IA No.1202/86 in CS

No.413/1986, Roca Sanitario versus Roma International IA

4171/2006 in CS(OS) No. 626/2006, Paragon Steels versus

Paragon Rubber 2009 (6) Kar LJ 566, Aveda Corporation

versus Dabur India 2010 (42) PTC 315, Kiran Jogani versus

George versus Records 155 (2008) DLT 739, Uniply Industries

versus Unicorn Plywood (2001) 5 SCC 95, East African

Remedies versus Wallace Pharmaceuticals AIR 2004 Delhi 74,

M/s KRBL Ltd. versus PK Overseas 185 (2011) DLT 336,

Premier Tissues India ltd. versus Rolia Tissues Industries (CS

No. 1672/2011) in support of their contention that the plaintiff has

failed to make out a case of infringement of copyright but a perusal

of the judgments makes it clear that the same are in the context of

different facts and are of no help to defendants, in the peculiar facts

of this case.

17. Accordingly, defendants are restrained from using the trade

mark "SWADI HOMEMADE" or any other mark which may be

deceptively similar to the plaintiff‟s mark as also the impugned

logo/label/packaging or any other deceptively similar logo in

respect of rice, cereals, pulses or any other cognate items, within the

territorial bounds of India, till the disposal of suit.

18. Application of the plaintiff is disposed off in the above terms;

while application of the defendants is dismissed.

A.K. PATHAK, J.

JULY 02, 2012 ga