Marico Limited vs Pratik Goyal & Anr.
2014 Latest Caselaw 4849 Del

.*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment reserved on: 30th July, 2014
%                     Judgment pronounced on: 26th September, 2014

+              IA Nos.13880/2012, 18643/2012 & 22186/2012 &
               CS(OS) 2304/2012

       MARICO LIMITED                                   ..... Plaintiff
                    Through        Ms. Anuradha Salhotra with Mr.
                                   Sumit Wadhwa and Mr. Tushar A.
                                   John, Advs.

                         versus

       PRATIK GOYAL & ANR.                            ..... Defendants
                    Through        Mr. Neeraj Grover, Adv.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order I propose to decide the pending applications bearing I.A. No.13880/2012 (under Order 39 Rules 1 & 2 CPC), I.A. No.18643/2012 (under Order 39 Rule 4 CPC) and I.A. No. 22186/2012 (under Order 39 Rule 2A CPC).

2. The plaintiff has filed the present suit seeking a permanent injunction against the defendants on their use of the trade mark PARALITE claiming the same to be infringing the mark PARACHUTE of the plaintiff, so as the colour-scheme, get up, lay-out and arrangement of features and similar logos used by the defendants as that of the plaintiff amounting to passing off their goods and

infringement of copyright and design with regard to similar shape of part of the articles.

3. Alongwith the suit, plaintiff filed an application being I.A. No.13880/2012 under Order 39 Rules 1 & 2 CPC. The suit as well as the interim application were listed before Court on 1st August, 2012 when an ex-parte order was passed restraining the defendants from using the trademark, PARALITE or any other trademark deceptively similar to the plaintiff's trademark, PARACHUTE and PARACHUTE LITE in relation to edible coconut oil and also restraining defendants from using packaging that is deceptively similar to that of the plaintiff's packaging in respect of edible coconut oil sold under the trademark, PARACHUTE.

4. The interim order was passed on 1st August, 2012 i.e. two years ago. The matter is at the stage of evidence. Learned counsel for the defendants is insisting for hearing of the applications though suggestion was given to expedite the evidence and hearing of the main suit itself. As he is not agreeable, the Court is left with no option but to hear the interim applications.

5. The plaintiff is seeking an injunction against the defendants -

 from using the trade mark PARALITE or any other trade mark deceptively similar to the trade mark PARACHUTE and PARACHUTE LITE;

 from infringing the design registrations of the plaintiff for its 1 litre container and mouth cap of its product sold under the

mark PARACHUTE; and  from infringing the registered copyright A64997/2003 by copying the artistic work.

6. The plaintiff claims that the plaintiff became the owner inter alia of the trade mark PARACHUTE in respect of coconut oils, edible oils etc. in the year 2000 when it bought the same vide a Deed of Assignment dated 31st May, 2000 from Bombay Oil Industrial Pvt. Ltd. The mark PARACHUTE had been adopted in the year 1948 and was extensively and uninterruptedly in use in respect of coconut oil and an undisputed market leader in this segment in the year of the assignment.

7. The trade mark PARACHUTE of the plaintiff was first registered on 31st July, 1978 as part of a composite mark under number 339152 in Class 3 in respect of hair oil. The same is represented herein under:

8. The plaintiff is the registered proprietor of following marks consisting of the mark PARACHUTE including the mark PARACHUTE LITE:

S. No. Trade Marks Registration No. Class

9. The plaintiff is also the owner of registered copyright No. A- 64997/2003 in the following:

10. The plaintiff states to have gotten the design registration for 1 litre container registered under number 176588 that expired on 4th June, 2013. The second design registration No. 180785 of the plaintiff for the mouth cap of the container is valid upto 15th November, 2014.

11. The plaintiff has detailed the sales and promotional figures for the mark PARACHUTE for the years 2001-2011in its plaint.

12. It is averred in the plaint that the plaintiff became aware of use of the mark PARALITE from the Trade Mark Journal 1424 of 16th September, 2009, where application No.1479090 of the defendants for registration of the mark PARALITE was advertised. The plaintiff opposed the said application of the defendants on 8th December, 2009. The opposition filed by the defendants is pending. The defendants were served a copy of the opposition by the Trade Marks Registry vide a letter dated 23rd March, 2012.

A comparison of the products of both the parties is reproduced below:

13. Upon service, the defendants filed the written statement and reply to the interim application. They also filed an application under Order 39 Rule 4 CPC seeking discharge and/or variation of the ex- parte injunction order dated 1st August, 2012 on various grounds. The said grounds are briefly listed below:

(i) The ex-parte order was obtained by the plaintiff by making misrepresentation as it was stated in the plaint that the notice of opposition was served upon the defendants in the year 2009 itself and no counter statement had been filed by the defendants to contest the said proceedings. But the correct position is that a counter statement was filed within the time prescribed. The plaintiff thus being guilty of concealment of material facts is not entitled to enjoy the fruits of an ex-parte ad-interim injunction.

(ii) While seeking ex-parte injunction, an impression was given by the plaintiff that the features of a device of coconut tree as also a device of two halves of an open coconut and the blue bottle were registered as a copyright in favour of the plaintiff but neither a device of tree nor two halves of an open coconut nor a blue

coloured label was registered as a copyright in favour of the plaintiff.

(iii) Many manufacturers engaged in the trade relating to coconut oil both in the edible as well as hair oil segments have been using a blue coloured bottle/container with a device of coconut tree and two halves of an open coconut on the packaging. The blue coloured bottles/containers have become publici juris in respect of the containers/bottles for packing coconut oil both in edible oil as well as hair oil segments and the same is a feature which is "common to trade" and no exclusivity could be claimed by the plaintiff in any manner whatsoever either under the concept of trade dress for the purposes of passing off or even in the concept of a subsisting copyright claim in respect thereof as the plaintiff could not claim that such a feature was original work emanating from the plaintiff or its predecessor. The plaintiff cannot seek exclusivity in respect of coconut tree and two halves of the coconut. Even the Registrar of Trade Marks had also put disclaimers on the Trademark registrations of the plaintiff on "a device of coconut tree as also a device of two halves of an open coconut" which happens to be a bonafide description of the product itself and each and every manufacturer in the trade has a bonafide right to use such description in accordance with Section 35 of the Trade Marks Act, 1999 (hereinafter referred to as the "Act"). The Registrar of Trademarks has also put a disclaimer as to the non exclusivity to various parts appearing in some registrations claimed by the plaintiff on the "device of

coconut tree" as also the word "lite" and all other descriptive matters appearing in such label registrations. The said facts were not disclosed by the plaintiff while seeking the ex-parte order of injunction.

(iv) That no exclusive rights in the word "lite" could be claimed as the same refers to the character of the product in as much as the same signifies that "light" nature of the oil. Several manufacturers in the trade are using the suffix "LITE" in relation their coconut oil as also in relation to various other edible oils.

(v) That the plaintiff also failed to disclose to this Court that even the prefix PARA in relation to coconut oil has become "publici juris" and common to trade by virtue of a substantial number of manufacturers using such names with the prefix PARA regularly in the course of their business. The details of such marks are mentioned in para 10 of the application under Order 39 Rule 4 CPC. The word PARA is not merely common to trade but is also common to register in view of the huge number of registrations in name of various third parties pending before the Registrar of Trademarks. The details of the same are mentioned in para 11 of the defendants' application under Order 39 Rule 4 of CPC.

(vi) Application under Order 39 Rules 1 & 2 of CPC is also liable to be dismissed in view of the fact that the plaintiff itself has made an admission in plaint as to the cause of action arising in the matter in the year 2009 when the plaintiff came to know of the activities of the defendant but has taken over three long years to approach the Court. Such knowledge has been specifically

admitted in the cross examination of PW-1 also. The plaintiff having failed to take appropriate injunctive remedy swiftly against the defendants and having allowed the defendants to grow their business is not entitled to continuance of interim injunction on the ground of inordinate delay in approaching this Court. The balance of convenience is also in favour of the defendants.

14. Various decisions are referred by the learned counsel for the defendants during the course of hearing as well as in the written submissions.

15. From the entire record and submissions addressed from both sides, this Court is of the view that the following points are necessary to be considered for the purpose of deciding the pending applications:

(i) Whether the trademark used by defendants i.e. Paralite is deceptively similar to plaintiff's registered trademark Parachute/Parachute lite?

(ii) Whether the word PARA is common to the trade and what is the effect of disclaimer imposed by the Trademark Registry on a device of coconut tree, a device of two halves of an open coconut and the word PARA?

(iii) Whether the colour scheme used by the defendants is common to trade and no monopoly can be claimed by the plaintiff under the law of copyright and passing off?

(iv) The delay, if any, on part of the plaintiff for bringing the action before this Court.

(v) Whether the plaintiff is guilty of suppression of material facts?

Test of infringement

16. It is to be examined as to whether the trademark used by the defendants i.e. PARALITE is deceptively similar to the trademarks of the plaintiffs i.e. PARACHUTE and PARACHUTE LITE or not. The products in question are hair oil /edible oil. The case of the plaintiff is that PARALITE is deceptively similar to PARACHUTE and PARACHUTE LITE.

17. In this regard, it is necessary to discuss Section 29 of the Act which reads as under:

(1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.

(2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of-

(a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or

(b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or

(c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.

(3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of the public.

(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which-

(a) is identical with or similar to the registered trade mark; and

(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and

(c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark.

(5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered.

(6) For the purposes of this section, a person uses a registered mark, if, in particular, he-

(a) affixes it to goods or the packaging thereof;

(b) offers or exposes goods for sale, puts them on the market, or stocks them for those purposes under the registered trade mark, or offers or supplies services under the registered trade mark;

(c) imports or exports goods under the mark; or

(d) uses the registered trademark on business papers or in advertising.

(7) A registered trade mark is infringed by a person who applies such registered trade mark to a material intended to be used for labelling or packaging goods, as a business paper, or for advertising goods or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee.

(8) A registered trade mark is infringed by any advertising of that trade mark if such advertising-

(a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or

(b) is detrimental to its distinctive character; or

(c) is against the reputation of the trade mark. (9) Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.

18. Section 29(2) of the Act is a new provision introduced in the Act whereby the scope of infringement enlarged than under the earlier

enactment. The words used in Section 29(2)(b) are "similarity" of trademarks as opposed to use of the word "deceptively similarity" used in Section 29(1). The threshold for considering similarity of trademarks under this section is therefore apparently different from the consideration related to "deceptive similarity" of trade mark.

In order to come under this provision, it is sufficient that the similarity of the marks is such as is likely to cause confusion not deception or to cause any association with the registered trade mark.

19. It is settled law that in order to prove the case for infringement of trade mark, the plaintiff has to show that the essential features of the registered trade mark which has been adopted by the defendant has been taken out from the plaintiff's registered trademark. Only the marks are to be compared by the Court and in case the registration is granted in favour of the plaintiff, he acquires valuable right by reason of the said registration.

In order to understand what is a mark, one has to read the definition of the "mark" and the "trademark" under Sections 2(1)(m) and 2(zb) of the Act together. In Section 2(1)(m), the meaning of the "mark" includes the name and word and/or any combination thereof. Similarly, as per Section 2(zb), "trademark" means, if the same is used in relation to goods or services for the purposes of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark. In the present matter, this Court is also dealing with the case of

infringement of trademark. The plaintiff No. 1 is admittedly the registered proprietor of the trademark.

20. The test of comparison of the marks side by side is not a sound one since a purchaser will seldom have the two marks actually before him when he makes his purchase. The eye is not an accurate recorder of visual detail and marks are remembered by general impression or by some significant detail rather than by any photographic recollection of the whole. While judging the question as to whether the defendants have infringed the trade mark by colourable imitation of the mark or not, the Court has to consider the overall impression of the mark in the minds of general public and not by merely comparing the dissimilarities in the two marks.

21. In order to establish infringement, the main ingredients of Section 29 of the Act are that the plaintiff's mark must be registered under the Act; the defendant's mark is identical with or deceptively similar to the registered trade mark; and the defendant's use of the mark is in the course of trade in respect of the goods covered by the registered trade mark. The rival marks are to be compared as a whole. Where two rival marks are identical, it is not necessary for the plaintiff to prove further that the use of defendant's trademark is likely to deceive and cause confusion as the registration shows the title of the registered proprietor and the things speak for themselves. In an infringement action, once a mark is used as indicating commercial origin by the defendant, no amount of added matter intended to show the true origin of the goods can effect the question. If Court finds that

the defendant's mark is closely, visually and phonetically similar, even then no further proof is necessary.

Test of comparison of rival marks

22. (i) In Pianotist Co. Ltd.'s application, 1906(23) R.P.C. 774, it was observed as follows :

"You must taken the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you must consider all the surrounding circumstances; and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion -that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that there will be a confusion in the mind of the public which will lead to confusion in the goods- then you may refuse the registration, or rather you must refuse the registration in that case."

(ii) In Parker Knoll Ltd. v. Knoll International Ltd., 1962 R.P.C. 265, Lord Denning explained the words "to deceive" and the phrase "to cause confusion" as follows:

"Secondly, 'to deceive' is one thing. To 'cause confusion' is another. The difference is this :

When you deceive a man, you tell him a lie. You make a false representation to him and thereby cause him to believe a thing to be true which is false. You may not do it knowingly, or intentionally, but still you do it, and so you deceive him. But you may cause confusion without telling him a lie at all, and without making any false representation to him. You may indeed tell him the truth, the whole truth and nothing but the

truth, but still you may cause confusion in his mind, not by any fault of yours, but because he has not the knowledge or ability to distinguish it from the other pieces of truth known to him or because he may not even take the trouble to do so."

(iii) In the case of Sandow Ltd.'s Application, 31 R.P.C. 205 it was clarified that among the surrounding circumstances to be taken into account, one of considerable importance is the imperfect recollection a person is likely to have of a mark with which he is only vaguely acquainted. While approving the above tests for comparison of the two word-marks, the Supreme Court held in F. Hoffmann-La Roche & Co. Ltd. Vs. Geoffrey Manner & Co. Pvt. Ltd. (1969) 2 SCC 716 that:

"It is also important that the marks must be compared as whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in the other case there is no sufficient similarity to cause confusion. The true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark."

(iv) In the case of Tokalon Ltd. v. Devidson and Co. 32 R.P.C. 133, it was observed that:

"...We are not bound to scan the words as we would in a question of compatriotic literarum. It is not a matter for microscopic inspection, but to be taken from the general and even casual point of view of a customer walking into a shop."

(v) In De Cordova and Ors. v. Vick Chemical Cov.(1951) 68 R.P.C. 103, the Privy Council while considering whether the mark

'Karsote Vapour Rub' was deceptively similar to trade mark 'Vapo Rub', inter alia, held as under:

"It is more useful to observe that in most persons the eye is not an accurate recorder of visual detail and that marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole."

(vi) In the case of Munday v. Carey (1905) 22 RPC 273 the Court held that:

"...I believe that it is a rank case of dishonestly, and where you see dishonesty, then even though the similarity were less than it is here, you ought, I think, to pay great attention to the items of similarity, and less to the items of dissimilarity."

(vii) In the case of Midland Counties Dairy Ltd. v. Midland Dairies Ltd. 1948 RPC429 it was held that:

"...For if the Court comes to the conclusion that the defendant was actuated in adopting the style complained of by the dishonest motive of filching some part of the plaintiffs' reputation, then the Court will not be astute to find that this nefarious design has failed."

(viii) In Amritdhara Pharmacy v. Satya Deo Gupta AIR 1963 SC 449, it was held that the trademarks Amritdhara and Laxmandhara are closely deceptively similar.

(ix) In the decision reported in AIR 1951 Bom 147, James Chadwick & Bros. Ltd. v. The National Sewing Thread Co. Ltd, Chagla C.J. and Bhagwati, J.; referring to the words "likely to deceive or cause confusion" in section 10 of the Act observed as follows:-

"Now in deciding whether a particular trade mark is likely to deceive or cause confusion, it is not sufficient merely to compare it with the trade mark which is already registered and whose proprietor is offering opposition to the registration of the former trade mark. What is important is to find out what is the distinguishing or essential feature of the trade mark already registered and what is the main feature or the main idea underlying that trade mark, and if it is found that the trade mark whose registration is sought contains the same distinguishing or essential feature or conveys the same idea, then ordinarily the Registrar would be right if he came to the conclusion that the trade mark should not be registered. The real question is as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what association he would form by looking at the trade mark, and in what respect he would connect the trade mark with the goods which he would be purchasing. It is impossible to accept that a man looking at a trade mark would take in every single feature of the trade mark. The question would be, what would he normally retain in his mind after looking at the trade mark? What would be the salient feature of the trade mark which in future would lead him to associate the particular goods with that trade mark?"

(x) In the decision reported as (1945) 65 RPC 62, Aristoc Ltd v. Rysta Ltd. decided by the House of Lords, it was held that the comparison of trademarks was a matter of first impression, but the mark "Rysta" too closely resembled mark "Aristoc" phonetically and it would be liable to lead to deception and confusion.

23. Thus, it appears to the Court that the trademark used by the defendants is deceptively similar to the trademark of the plaintiff and the use of the trademark PARALITE by the defendants would likely to cause confusion and deception.

PARA common to trade and publici juris:

24. The defendants have alleged that PARA is common to trade and publici juris, however, the defendants have not provided any cogent evidence in order to show the third party user. Though in para 10 of the defendants' application being I.A. No.18643/2012, the defendants have listed 11 products of third parties, however, they have failed to show that any of the said parties have any significant presence. The defendants have not given any date since when these products are available in the market and the extent of their availability. The photographs of the products referred by the defendants PARANUT, PARACARE, PARABRITE and PARALIFE have not been produced. The defendants have not given the particulars of the manufacturer of the goods sold under the trademarks PARABRITE and PARALIFE. With respect to the mark PARAFIT, the plaintiff has already initiated legal proceedings against the manufacturer in this Court being C.S. (O.S.) No. 2902 of 2012.

25. Thus, the defendants in the present case even prima facie are not able to establish that the third parties are actually using the similar trademarks as alleged in the written statement. Nothing has come out of record to show that any third party has actually used the main PARA to their products. A mere plea, thus raised is not enough as per settled law.

26. Law of publici juris has been discussed in various cases and the Courts have given their respective findings to the effect that a

party who has taken the defence of publici juris has to prove his case. The same has been dealt with by the Courts in the following cases:

(i) In Rolex Sa v. Alex Jewellery Pvt. Ltd. and Ors. 2009 (41) PTC 284 (Del), it was observed as under:

"22. The next aspect to be considered is the effect/impact, if any, of a large number of other persons using the word ROLEX as claimed by the defendant. At this stage, this plea will be examined believing the same to be true. In my view, the same would be immaterial. Firstly, nothing has been shown that any of the said users has any significant presence. Secondly, it is now well settled in Honda (supra) in turn relying upon Indian Shaving Products Ltd. Vs Gift Pack that merely because the plaintiff who is otherwise found entitled to the interim injunction is shown to have not taken any step against other infringers is no ground to deny relief to the plaintiff. It cannot also be said that the plaintiff's trademark has lost its distinctiveness for the said reason. The reply affidavit of the plaintiff lists the orders of the Trade Mark Registry from 1964 to 2000, where plaintiff's mark has been protected inter alia for reason of having great reputation. It also shows that the plaintiff has been enforcing its rights. Though the list filed by defendant No. 1 in this regard is long but a perusal thereof shows a number of applicants to have abandoned or withdrawn their applications. This is a vast country. Mere long list of applicants/registrants of mark, without any extensive use of the mark, cannot dent the distinctive character or repute of the mark."

(ii) In Express Bottlers Services Pvt. Ltd. v. Pepsico Inc. and Ors., 1989 (9) PTC 14, it has been observed as under :

"50.....To establish the plea of common use, the use by other persons should be shown to be substantial. In the present case, there is no evidence regarding the extent of the trade carried on by the alleged infringers or their respective position in the trade. If the proprietor of the mark is expected to pursue each and every insignificant infringer to save his

mark, the business will come to a standstill. Because there may be occasion when the malicious persons, just to harass the proprietor may use his mark by way of pinpricks.... The mere use of the name is irrelevant because a registered proprietor is not expected to go on filing suits or proceedings against infringers who are of no consequence...."

(iii) In the case of Century Traders vs. Roshan Lal Duggar & Co., AIR 1978 Delhi 250 it was observed as under:

"14. Thus, the law is pretty well settled that in order to succeed at this stage the appellant had to establish user of the aforesaid mark prior in point of time than the impugned user by the respondents. The registration of the said mark or similar mark prior in point of time to user by the appellant is irrelevant in an action for passing off and the mere presence of the mark in the register maintained by the trade mark registry did not prove its user by the persons in whose names the mark was registered and was irrelevant for the purposes of deciding the application for interim injunction unless evidence had been led or was available of user of the registered trade marks. In our opinion, these clear rules of law were not kept in view by the learned single Judge and led him to commit an error."

(iv) Reference may also be had to the judgment of this Court in the case of P.M. Diesels v. S.M. Diesels, AIR 1994 Del 264, where in para 8, this Court held as follows:

"(8) Next contention raised by learned counsel for the defendant is that the word Marshal has become common to the trade of diesel engines in Rajkot and various other persons are using the trade mark in one form or other as inasmuch as some are using Airmarshal, Perfect Marshal, Powermarshal etc. and the defendant is not the only person who is using the trade mark Sonamarshal only. The plaintiff, therefore, cannot claim its trade mark to be distinctive of its

goods or business and no customer is likely to be confused or deceived on account of this trade mark. This contention of the learned counsel for the defendant is also without force. In this connection it is sufficient to say that under the law it is the right of two parties before the court which has to be determined and the court has not to examine the right of other parties. If some other manufacturers are using or suffixing the word Marshal on their diesel engines, it is of no consequence. Furthermore, if the plaintiff has not taken any action against several other infringements, this does not mean that the plaintiff has abandoned its trade mark and cannot challenge the action of the defendant."

In view of the above legal position, there is no force in the submission of the defendants that the word 'PARA' is a common mark used in the trade and the plaintiff is not entitled to exclusive protection of the mark.

27. It is pertinent to mention here that the defendant No.1 himself filed an application under number 1479090 for registration of the mark PARALITE. In the case of Automatic Electric Ltd. Vs. R.K. Dhawan, (1999) (19) PTC 81 it was held that the defendant therein having got the trademark "DIMMER DOT" registered in Australia, could not contend that the word "DIMMER" is a generic expression. Automatic Electric Ltd. (supra), was approved by the Division Bench of this Court in The Indian Hotels Company Ltd. Vs. Jiva Institute of Vedic Science & Culture, 2008 (37) PTC 468, wherein it was held that:

"40. It was next argued by Mr. Rohtagi that the word 'JIVA' is a descriptive word which cannot be protected as a trade mark by a Civil Court. We do not think so, the appellant has itself applied for registration of the Jiva as a trade mark and

cannot, Therefore, argue that the mark is descriptive. In Automatic Electric Limited. v. R.K. Dhawan and Anr. 1999 PTC (91) 81 this court has in similar circumstances repelled the contention and held that since the defendant had itself sought to claim a proprietary right and monopoly in "DIMMER DOT", the disputed trade mark it did not lie in its mouth to say that the said mark was a generic expression."

28. The other argument of the learned counsel for the defendants that the word PARA is common to register as huge number of applications are pending before the Registrar of Trademarks, has no force as the plaintiff has filed opposition against 21 out of the 96 applications mentioned in the table given by the defendants. Further, lot of the applications have still not been advertised for opposition. In Novartis AG v. Crest Pharma Pvt Ltd., 2009 (41) PTC 57 (Del), it was held :

"33. A mere filing of the search report from the trademarks office does not prove as to whether the marks mentioned in search report was actually been used or not. It is imperative on the part of the party who relies upon the marks of third party to produce cogent and clear evidence of user in order to prove the defence of common marks to the trademark on the basis of the third party user. Hence, in the absence of valid and cogent evidence, the submission of the defendant cannot be accepted."

29. The next submission of the learned Counsel for the defendants relates to Section 17 of the Act. It is argued that under Section 17 of the Act where a Trade Mark consists of several matters, its registration confers exclusive right to use the mark as a whole and the registration does not confer a right on the matter being a part of

the trade mark like the claim made by the plaintiff in respect of PARACHUTE LITE. Section 17 of the Act reads as follows :

Section 17-Effect of registration of parts of a mark

(1) When a trade mark consists of several matters, its registration shall confer on the proprietor exclusive right to the use of the trade mark taken as a whole.

(2) Notwithstanding anything contained in sub-section (1), when a trade mark-

(a) contains any part-

(i) which is not the subject of a separate application by the proprietor for registration as a trade mark; or

(ii) which is not separately registered by the proprietor as a trade mark; or

(b) contains any matter which is common to the trade or is otherwise of a non-distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered.

30. The judgment of the Division Bench of this Court in the case of Jagan Nath Prem Nath vs. Bhartiya Dhoop Karyalaya, AIR 1975 Delhi 149 would be a complete answer to the above submissions of the learned counsel for the defendants. The Court held as follows:

"7. This being the law, it cannot be disputed that in an action for infringement the plaintiff can succeed not only when he proves that the whole of his registered trade mark has been copied but can also succeed if he shows that the defendant's mark is similar to the plaintiff's mark as it would be remembered by persons possessed of an average memory with its usual imperfections or that its essential particular or the distinguishing or essential feature has been copied ..........

15. Shri P.C. Khanna, learned counsel for the respondent, argued that where a distinct label is registered as a whole

such a registration does not confer any exclusive statutory right on the proprietor to use any particular word or name contained therein, apart from the mark as a whole. Reliance in support of this proposition was placed on the observations in the Registrar of Trade Marks v. Ashok Chandra Rakhit Lid. (1955) 2 S-C-R. These observations in the cited case were made in the context of exercise of powers conferred on the Registrar by Section 13 of the Trade Marks Act, 1940. This aspect is not at all relevant for the present controversy because the plaintiff can succeed in an action for 'infringement' if he proves that an essential particular of his trade mark has been copied: See Taw Manufacturer Coy. Ltd. v. Notek Engineering Coy. Ltd. and another'. (1951) 68 RPC 271(2)."

In the present case even if the trade mark of the plaintiff PARACHUTE/PARACHUTE LITE is compared as a whole with the trade mark of the defendants, PARALITE adopted by the defendants is deceptively similar mark as that of the plaintiff as it appears that the first part PARA is taken by the defendants from the registered trade mark PARACHUTE and the remaining portion of the mark LITE is taken by defendants from another registered trade mark PARACHUTE LITE where the mark LITE is a part of registration No.888245. Thus, the argument of the defendants are without any force. This Court feels that the conduct of the defendants has to be seen at the time of adoption.

The learned counsel for the defendants has referred few decisions in support of his contentions. Having gone through the said decisions, the same are not applicable to the facts of the present case. Even the decision referred in the case of Himalaya Drug Co.

Vs. SBL Limited 2010 (43) PTC 739 (Del) has been overruled by the Division Bench of this Court subsequently.

31. Thus, it cannot be declared that the word i.e. part of the registered trademark para is open to the trade. It is not the right practice to split the mark for the purpose of comparison. Two set of trademarks of the parties are to be compared as a whole. The argument of the learned counsel for the defendants is rejected.

32. In the case of B.K. Engineering v. Ubhi Enterprises, AIR 1985 Delhi 210, it was observed as under:

"Competition must remain free. It is true it is the life blood of free enterprise system. It is essential that trading must not only be honest but must not even unintentionally be unfair." In view of the above said well known settled law on the subject, it is clear that the defendant is guilty of infringement of copyright and passing off their goods as the goods of the plaintiff. From the above said judgments cited it is clear that in most of the cases the copyright has been claimed by the plaintiff on the article itself. It is also pertinent to mention that the subject matter of the colour combination, get-up and layout are not only covered in the subject matter of copyright but also covered under the common law remedy i.e. law of passing off. Even in the New Trade Mark Act 1999 the definition of the mark is given in Section 2(m) which says that "Mark" include a device, brand, style, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. As per the definition and as per the judgments mentioned above it is clear that the colour scheme, get up, layout and combination of colours is covered under the action for passing of also. In view of this, in the present case the defendants have infringed the Copyright of the plaintiff. This issue is accordingly decided in favour of the plaintiff."

Infringement of copyright and passing off in colour combination

33. (i) In Anglo-Dutch Paint, Colour and Varnish Works Pvt. Ltd v. India Trading House, AIR 1977 Delhi 41, the plaintiff claimed the relief on the basis of get up, layout and arrangement of violet and grey and colour combination of the plaintiffs' container. It was alleged that the defendant has very recently adopted identical container in respect of white paints as mentioned in Para 3 and 4 of the judgment. In Para 9 of the said judgment, it is observed as under:

"Having noticed the principles which have to be borne in mind, the application thereof is not difficult in the present case. It is true that there is a phonetic difference between the numerals "1001" and "9001" but taking into account the entire get up the combination of colours, it will be noted that the essential features of plaintiffs' containers have been absolutely copied. The entire scheme of the containers is also the same. There is a common large circle with the same colour scheme and with the same background. There is the same description of Superior White on top and Zinc paint on the bottom in the circle. Again, the White circle with grey lettering is identically super-imposed on violet background. The only difference is that instead of white parallelogram shapes on top and base borders there are white triangles and on the white parallelograms instead of numeral "1001" in grey lettering, the numeral on the defendant's container is "9001" but the overall effect is just the same. The commodity is such that it is likely to be purchased by customers from a ll strata of society including the petty "kapkhandars. and contractors."

(ii) In the case of Burroughs Wellcome (India) Ltd v. Uni-Sole Pvt. Ltd. 1999 PTC 188 , it was observed as under:

"Copyright is a form of intellectual property. With advancement in technology it is very easy to copy. The basic test in actions based on the infringement of the copyright is

that if a thing fetches a price, it can always be copied and therefore, it needs adequate protection. It is well settled that although under the Copyright Act, 1957, there is a provision of registration, under Section 44 of the Act. It is not in doubt that the said procedure is an enabling provision and registration is not compulsory for the purpose of enforcing copyright. Section 44 of the Act provides for registration of work in which copyright exists but in order to claim copyright registration is not necessary. This is because registration is only to raise a presumption that the person shown in the certificate of registration is the author. This presumption is not conclusive, but no further proof is necessary unless there is a proof rebutting the contents of the said certificate. Under Section 48 of the Registration Act, therefore, the act of registration is ex-facie prima facie evidence of the particulars incorporated in the certificate. 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. The sine-qua non of existence of a copyright is expenditure of skill, labour and capital on any work expanded by a person/author and unless the original work is produced in court to prima facie show that the work has originated from author, no relief can be granted. In other words, copyright exists even without it being registered for the purpose of its enforcement. The nature of copyright is also meant to be borne in mind. It subsists in any material form in which ideas are translated. Copyright is a incorporeal right. It does not lie in any idea, but it lies in the expression in which the idea is expressed. The work of an author therefore, becomes the subject matter of the copyright. In essence the copyright is a negative right of preventing copying of physical material in the field of art, literature etc. Once an idea is written down, the writing becomes the subject matter of copyright. With globalisation and advancement of technology, even computer programmes come within the copyright. Any work conveying

a particular information comes within the subject matter of a copyright and it needs protection".

(iii) In the case of Vicco Laboratories Bombay v. Hindustan Rimmer, Delhi, reported at AIR 1979 Delhi 114, the case of the plaintiffs before Court was that the plaintiffs have been marketing the cream in a collapsable tube of 3 different sizes which has the distinctive get up etc. The collapsable tube has red background with floral design in yellow colour under the trade mark 'Vicco Turmeric Vanishing Cream. in the carton as well as tube in yellow strip in the bottom. The case against the defendant was that they have been marketing the vanishing cream in the carton and tube which are a colourable imitation of the plaintiff's carton and tube under the trade mark 'Cosmo'. This Court granted the injunction against the defendant and held as under:

"The plaintiffs claim passing off by the defendants of their product as and for the product of the plaintiff's on the basis of copy of the distinctive get up and colour scheme of the collapsible tubes and the cartons by them. The defendants are not entitled to represent their goods as being the goods of the plaintiffs. The two marks "Vicco" and "Cosmo" used by the plaintiffs and defendants respectively are no doubt different and the mark "Cosmo" by itself is not likely to deceive but the entire get up and the colour scheme of the tube and the carton adopted by the plaintiffs and the defendants are identical in every detail and are likely to confuse and deceive the customer easily. The get up and the colour scheme of the plaintiff'. adopted in every detail by the defendants for their tube and carton cannot be said to have been adopted by the defendants unintentionally."

(iv) In the case of Nova Ball Bearing Industries v. Mico Ball Bearing, PTC (Supp)(1) 497(Del), it has been held as under:

"A comparison of the two cartons "NOVA" and "JANI" would reveal that two cartons are exactly similar in size, colour scheme and get up, the only difference that the trade mark of the defendants is written at 5 places and that of the plaintiff at 3 places. The two cartons bear such a close resemblance that they can easily confuse and deceive a customer."

It was further observed:-

"......The plaintiffs are actually using the artistic carton entitled `NOVA' since 1971. They got their copyright in the said carton registered in 1978. The plaintiffs are clearly the prior user of the impugned carton. The defendants, it appears, got the copyright in the impugned carton registered in their same by suppressing the fact of its earlier registration in the name of the plaintiffs. It may be noticed here that the counsel for the plaintiffs stated that the plaintiffs have already moved for the rectification of the register of copyright." "Prima facie, the defendants seem to be guilty both of infringement of the copyright and passing off."

(v) In Cases and Material on Trade Mark and Allied Laws, Vol.I at Page No.969 Muller and Phipps International Corporation and Anr. v. Anita Cosmetics and Anr., the following observations are made at para 5 page No. 971:

"It is true that the use of the mark COUNTESS by itself is not likely to deceive the customers. But if the two containers CUTICURA and COUNTESS are put side by side, it becomes apparent that in the get up, colour scheme and the similarity the containers are so similar that they easily confuse and deceive the customers. The defendant No.1 has adopted the get up and colour scheme of the container to the plaintiffs. in every detail and they are identical in appearance."

(vi) In the case of Sodastream Ltd. v. Thorn Cascade Co Ltd. reported at 1982 RPC 459, the plaintiffs were marketing the gas

cylinders of grey colour under their trade mark 'Sodastream' and the defendants having also been marketing their black colour cylinders under their own trade mark 'Thorn Cascade', the proposals of the defendants to refill the grey colour gas cylinders of the plaintiff, even with their own trade mark amounts to passing off as the grey colour cylinder is distinctive of the plaintiffs in respect of which the reputation accrued in favour of the plaintiffs. Interlocutory injunction granted.

(vii) In another case Hoffmann-La Roche and Co. A.G. v. D.D.S.A. Pharmaceuticals Limited, reported in 1972 RPC 1, the plaintiffs manufactured and marketed chlordiazepoxide in distinctive black and green capsules bearing the word "Roche" on each capsule, the defendants also marked and advertised the drug chlordiazepoxide in black and green 10mg capsules which were identical to those of the plaintiffs except that they bore the letters "DDSA" instead of the plaintiffs' name. The plaintiffs were granted interlocutory injunction to restrain the defendants from passing off capsules of the patented drug as the goods of the plaintiffs. It was held that marketing of the capsules by the defendants in almost identical form to those of the plaintiffs was calculated to cause damage to the plaintiffs. It was further held that there was a likelihood of confusion as both the capsules contained the same drug. The public were not concerned with the identity of the manufacturing of the capsules as long as the capsules contained the same substance and had the same effect.

(viii) In case of Smith Kline and French Laboratories Limited. vs Trade Mark Applications, reported at 1974 RPC 91 , it was observed as under:

"The upshot of all these cases is to my mind to establish that a scheme of colouring applied to goods may be a mark within the definition in Section 68. That definition as was pointed out in contrast to other definitions in the Act, starts with the word "includes" showing that the definition is purposely not limited to the precise words which follow. The combination of colour giving a speckled effect in the present case is, in my judgement, no less a mark than the red lines in Redduway's hose case of the "heading" in the cotton cases and in the Winter-Hoffmann-La Roche chlordiazepoxide case."

It was further observed:

"The truth of the matter is I think as follows. In some cases the colour is an essential part of the article as an article whilst in others it is something which is not essential and has been added for some other reason. If it has been added so as to denote the origin of the goods, and the evidence shows that in practice it does so, it can properly be said that it is being used as a mark in the trade mark sense. The answer is no doubt one of degree and will depend on the evidence. It would be highly unlikely that colour in a lipstick could ever become distinctive of one manufacturer because in such a case colour is an essential element in and part of the article itself. It is for that reason that the customer buys it. Colour in a passenger motor car would normally be in a similar but not so conclusive a position, but I see no reason why a trader, as some do, should not paint his delivery vans or racing cars in specific distinct colours to indicate the origin of the car or of the goods it normally carries as emanating from him. With drugs, on the other hand, the position is the opposite of the lipstick. Colour is of no importance to the article as a drug and it may, if sufficiently, distinctive, be an exceedingly effective indication of origin.

It was further observed: I cannot see why other manufacturers should want to adopt the applicants. colour arrangements here except for the improper motive of trying to benefit from the latter's established goodwill."

(ix) In the case of Tavener Rutledge Ld. v. Specters Ld. 1959 RPC 83, it was observed as under:

"It seems to me that one has to take into consideration people who have what is called imperfect recollection, as was pointed out in the case of Saville Perfumery Ld. v. June Perfect Ld. (1941) 58 RPC 147 and one has to allow for cases where the person who has not got the two tins side by side perhaps does not remember the plaintiffs name accurately, or does not know that there are two different traders in the same line of business, or many others for that matter, and takes a casual glance at the tin and imagines that it is the kind of fruit drops that he wants, not entirely casually, but looking at it in the ordinary way that such a customer would go into a shop and see a pile of tins or something of that sort. Afterwards of course raise objection, but it seems to me that it is a case of confusion if customers are induced to buy by a recollection of the general get up of the plaintiffs. tin so that they purchase a tin of the defendants. sweets by mistake and I am bound to say that I have come to the conclusion that such confusion is not only possible but is likely."

Passing off and confusion deception in trade mark cases

34. The test of confusion and deception in order to prove the case of passing off has been very well discussed in the case of Laxmikant V. Patel vs. Chetanbhat Shah and Another, a judgment delivered by the Supreme Court, reported in (2002) 3 SCC 65, wherein the Apex Court while considering a plea of passing off and grant of ad interim injunction held in no uncertain terms that a person may sell

his goods or deliver his services under a trading name or style which, with the passage of time, may acquire a reputation or goodwill and may become a property to be protected by the Courts. It was held that a competitor initiating sale of goods or services in the same name or by imitating that name causes injury to the business of one who has the property in that name. It was held that honesty and fair play are and ought to be the basic policy in the world of business and when a person adopts or intends to adopt a name which already belongs to someone else, it results in confusion, has the propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury. It was held that the principles which apply to trade mark are applicable to trade name also.

In para 10 of the aforesaid judgment reads as under:- "The law does not permit any one to carry on his business in such a way as would persuade the customers or clients in believing that his goods or services belonging to someone else are his or are associated therewith. It does not matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly, honesty and fair play are, and ought to be, the basic policies in the world of business. Secondly, when a person adopts or intends to adopt a name in connection with his business or services which already belongs to someone else it results in confusion and has propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury." In this case, the Apex Court further observed that:

"Where there is probability of confusion in business, an injunction will be granted even though the defendants adopted the name innocently."

35. The likelihood of confusion or deception in such cases is not disproved by placing the two marks side by side and demonstrating how small is the chance of error in any customer who places his order for goods with both the marks clearly before him, for orders are not placed, or are often not placed, under such conditions. It is more useful to observe that in most persons the eye is not an accurate recorder of visual detail and that marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole. In the decision titled as De Cordova v. Vick Chemical Co. (supra), the plaintiffs were the proprietors of a label containing the words "Vick's VapoRub" as the essential feature, registered in Jamaica, and the defendants used a similar label with the words "Karsote Vapour Rub" as the essential feature, and it was shown that the expression "VapoRub" had become distinctive of the plaintiff's goods in Jamaica, an action for infringement was successful.

Therefore, the plaintiff has prima facie established a classic case of infringement of copyright and passing off. Any argument of the learned counsel for the defendants on this aspect is rejected. None of the decisions referred by the learned counsel for the defendants help the case of the defendants as the facts in the present case are different.

Delay:

36. The argument of the learned counsel for the defendants is that there is a delay of 32 months by the plaintiff in approaching the Court. However, the plaintiff filed an opposition in the year 2009 as soon as

the application for registration of the mark PARALITE was published. This ought to have warned the defendants that the plaintiff is not allowing the use of mark.

37. The issue of delay and acquiescence has been considered by Courts in various matters. Some of them are as under:

(i) In the case of Midas Hygiene Industries Pvt. Ltd. vs. Sudhir Bhatia and Others, 2004 (28) PTC 121 (SC), it was observed as under:

"5. The law on the subject is well settled. In cases of infringement either of Trade Mark or of Copyright normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the Mark was itself dishonest."

(ii) In the case of Swaran Singh vs. Usha Industries (India) and Anr. AIR 1986 Delhi 343 (DB), it was observed as under:

"7. There is then the question of delay. Learned counsel for the respondents had urged that the delay is fatal to the grant of an injunction. We are not so satisfied. A delay in the matter of seeking an injunction may be aground for refusing an injunction in certain circumstances. In the present case, we are dealing with a statutory right based on the provisions of the trade and Merchandise Marks Act, 1958. An exclusive right is granted by the registration to the holder of a registered trade mark. We do not think statutory rights can be lost by delay. The effect of a registered mark is so clearly defined in the statute as to be not capable of being misunderstood. Even if there is some delay, the exclusive right cannot be lost. The registered mark cannot be reduced to a nullity....."

(iii) In the case of Hindustan Pencils Pvt. Ltd. Vs. M/s. India Stationery Products Co. AIR 1990 Delhi 19, it was observed as under:

"31. ........ It was observed by Romer, J. in the matter of an application brought by J.R.Parkingnon and Co. Ltd., (1946) 63 RPC 171 at page 181 that "in my judgment, the circumstances which attend the adoption of a trade mark in the first instance are of considerable importance when one comes to consider whether the use of that mark has or has not been a honest user. If the user in its inception was tainted it would be difficult in most cases to purify it subsequently". It was further noted by the learned Judge in that case that he could not regard the discreditable origin of the user as cleansed by the subsequent history."

(iv) In the case of Rolex SA v. Alex Jewellery, (supra), it was observed as under:

"24. .......Even if the defendant, at the time of commencing the use, did not know of the inherent risk in adopting the well- known trade mark, the defendant, at least, immediately on applying for registration and on opposition being filed by the plaintiff became aware of the perils in such use. Thus, use by the defendant of the mark is for short time only and use during the period of opposition is of no avail......

25. .......With respect to latches, acquiescence and waiver, such defence is available only when some positive act of encouragement is shown on the part of the plaintiff. Not only no such positive act shown in the present case but the opposition filed by the plaintiff to the application for registration of the defendant ought to have warned the plaintiff that the plaintiff is not allowing the defendant to use the mark......"

38. I agree with the argument of the learned counsel for the plaintiff that at the time of filing of the suit the plaintiff was not aware of the filing of the counter statement by the defendants as the same had neither been served nor had it been uploaded on the website of the Trade Marks office. The arguments of the learned counsel for the defendants are without any force and the same are rejected. The delay in this matter is immaterial once it is held that the defendants are guilty of infringement of trade mark, copyright and passing off, the delay of certain period can be overlooked because of continuous cause of action.

Disclaimer

39. It has been averred by the learned counsel for the defendants that the plaintiff has failed to inform the Court that there are disclaimers on the device of coconut tree, word lite, two halves of coconut and blue coloured bottle in their registrations. On the other hand, the learned counsel for the plaintiff argued that the whole of the mark including the disclaimed portion is to be considered to determine the question of confusion/deception and at the time of filing of the suit, the registration certificate was produced.

In Duke Fashions (India) Pvt. Ltd. V. Girish Hosiery & Ors. MIPR 2010 (2) 422 it was observed that:

"........The senior counsel for Duke Fashions in this regard also relies on the judgment of the Bombay High Court in Pidilite Industries Ltd. v. S.M. Associates 2004 (28) PTC 193 and with which I respectfully agree, reiterating that disclaimer does not affect the significance which a mark conveys to others when used in the course of trade; disclaimers do not

go into the market place, and the public generally has no notice of them. The matter which is disclaimed is not necessarily disregarded when question of possible confusion or deception of the public, as distinct from the extent of a proprietors exclusive rights, are to be determined. In that case, the whole of the mark including the disclaimed portion was considered to determine the question of confusion/deception."

40. The scope and effect of disclaimer has been explained by the Apex Court in the case of Registrar of Trade Marks v. Ashok Chandra Rakhit Ltd, AIR 1955 SC 558 wherein it was held that as under:

"The real purpose of requiring a disclaimer is to define the rights of the proprietor under the registration so as to minimise, even if it cannot wholly eliminate, the possibility of extravagant and unauthorised claims being made on the score of registration of the trade mark. The disclaimer is only for the purposes of the Act. It does not affect the rights of the proprietor except such as arise out of registration."

41. In view of the above and as per the settled law, as the two trademarks of parties have to be compared as whole, the argument of the defendant has no force. It is admitted position that there is no disclaimer on the trademark PARACHUTE. Even otherwise, the disclaimer part is protectable under the law of passing off by virtue of the proviso to Section 17 of the Trade and Merchandise Marks Act, 1958. Thus, arguments of the learned counsel for the defendants in this regard are rejected.

42. In view of the above, the plaintiff has made a strong prima facie case. Balance of convenience also lies in favour of the plaintiff and

against the defendants. In case the interim order will not continue, the plaintiff will face irreparable loss and injury. Even otherwise, the evidence of the plaintiff is being recorded, the interim order passed on 1st August, 2012 is continued for more than two years.

43. Considering the overall facts and circumstances of the case, the application filed by the plaintiff under Order 39 Rules 1 & 2 CPC being IA No.13880/2012 is allowed. The interim order granted on 1st August, 2012 is made absolute during the pendency of the suit. Consequently, application filed by the defendants under Order 39 Rule 4 CPC being I.A. No.18643/2012 is dismissed. As regards I.A. No. 22186/2012 (under Order 39 Rule 2A CPC), the same will be considered at the time of final hearing of the suit.

44. The finding arrived in the present applications are prima facie tentative and shall have no bearing when the matter is decided after recording the evidence of the parties.

45. No costs.

(MANMOHAN SINGH) JUDGE SEPTEMBER 26, 2014