PETITIONER: <NAME> Vs. RESPONDENT: <NAME> & OTHERS DATE OF JUDGMENT30/08/1983 BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA THAKKAR, M.P. (J) CITATION: 1983 AIR 1219 1983 SCR (3) 762 1983 SCC (4) 231 1983 SCALE (2)175 CITATOR INFO : R 1985 SC 628 (54) RF 1991 SC 792 (4) RF 1992 SC 604 (106) ACT: Dowry Prohibition Act , 1961- Sections 2 and 4 scope of- Demand for payment of money made during marriage ceremonies- Demand pressed later- Whether constitutes an offence under section 4 . <ORG>-Inherent power-When should be exercised. HEADNOTE: In a complaint filed before the Judicial Magistrate the appellant (bride's father) alleged that during the marriage ceremonies the first respondent (bride groom's father) had demanded a large sum of money to be paid to him as dowry and threatened that if the appellant did not pay the sum he would stop further marriage ceremonies, that even after his daughter. had gone to the first respondent's house after the marriage the respondent's continued to demand payment of money and that this constituted an offence under section 4 of the Dowry Prohibition Act, 1961. After verifying the complaint the Judicial Magistrate issued processes to the respondents and sent summons is to the United States where the respondents were, Allowing the respondent's application impugning the order of the Magistrate issuing summonses, the <ORG> held that since there was no allegation in the complaint that the respondents first demanded the dowry and the appellant had agreed to pay it and the respondents thereafter demanded it again, no offence under section 4 was made out. In the appeal to this Court it was contended on- behalf of the appellant that a mere demand for dowry, even if there was no consent to comply with that demand, would constitute an offence under section 4 of the Act. Allowing the appeal, ^ HELD: From a reading of section 2 of the Act, it would appear that consent to comply with demand for payment of any property or valuable securities as 'consideration' for the marriage would alone make the property or valuable security given or agreed to be given directly or indirectly "dowry" 763 within the meaning of the Act. But having regard to the dominant purpose of the Act the entries definition of "dowry" should not be imported into section 4 . The dictionary meaning of the word 'bride' is a woman about to marry or has just been married and a `bridegroom' is a man who is about to marry or has just been married. If the literal-meaning of these words is given to the words bride and bridegroom used in the section any property or valuable security demanded and contented to be given before the woman had become a bride or the man had become a bridegroom may not be dowry. The avowed object of the Act being to eradicate the evil of demanding dowry, a liberal construction has to be given to the word "dowry" to mean any property or valuable security which if consented to be given on demand would be dowry within the meaning of section 2 . There is, therefore, no warrant for the respondents' contention that initial demand for dowry would not constitute an offence but that it would be an offence only when the demand was made again after the party on whom it was made had agreed to comply with it. [771 B-H; 722 <CITATION> , 1981 Crl. L.J. 1116 approved. The inherent power of the <ORG> must be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a citizen. In this case the <ORG> should have refused to involve its inherent power at the threshold to quash the proceedings. [772 B-C] JUDGMENT:

CAIMINAL APPELLATE JISRISDICTION: Criminal Appeal No 494 of 1982.

Appeal by Special Leave from the Judgment and order dated the 22nd December, 1981 of <ORG> in Criminal Appln. No. 283 of 1981.

<NAME>. <NAME>, <NAME> and Mrs. <NAME> for the Appellant.

<NAME> and <NAME> for the Respondent. <NAME> and <NAME> for the State of Maharashtra.

The Judgment of the Court was delivered by VARADARAJAN, J. This appeal by special leave is directed against the judgment of <ORG> of <ORG> in Criminal Application No. 283 of 1981, quashing the proceedings in Criminal Case No. 1634 of 1980 on the file of the Judicial Magistrate, First Class (Anti Corruption), Pune. The application in <ORG> was filed by the respondents in this appeal, who are the two accused in that criminal case, for quashing the criminal proceedings as well as the order of the Judicial Magistrate, issuing processes against them in that case.

The appellant <NAME> was the first respondent while State of Maharashtra was the second respondent in the application before <ORG>. The first respondent <NAME> is the father of the second respondent <NAME>. There was a proposal to get the appellant's daughter <NAME>, a Science Graduate, married to the second respondent, a double Graduate in Engineering, working in the United States. After <NAME> and the second respondent approved each other there was an engagement ceremony on 12.6.1978 at Pune and the marriage was performed at that place on 19.6.1979 after the first respondent came from the United States in May 1979.

According to the appellant's complaint, when the marriage ceremonies were in progress on 19.6.1979, both the respondents demanded a cash of Rs. 50,000 from the appellant in the presence of respectable persons under the pretext that the money was required for the transport of <NAME> and the second respondents to the United States. The respondent told the appellant that if he did not comply with that demand by way of dowry further ceremonies monies would not be completed. Some respectable persons who were present at that time persuade the respondents to complete the marriage ceremonies and formalities and thereafter the marriage ceremonies were over. The second respondent alone went to the United States in July 1979 as the passport and visa for <NAME> had to be arranged which was done some time later while <NAME> was staying in the house of the first respondent. <NAME> was not sent to the United States and the respondents continued to persist in their demand for the money when she was staying in the first respondent's house. The appellant filed a complaint before <ORG>, First Class on 5.6.1980 against both the respondents, alleging that they had committed an offence under s. 4 of the Dowry Prohibition Act, 1961 by demanding the sum of Rs. 50,000 as mentioned above. This was done after the appellant had obtained the necessary sanction required by the proviso to s 4 of the Act. The Judicial Magistrate verified the complaint and issued processes to the respondents and sent summonses to the United States where the first respondent was staying with the second respondent at that time.

The respondents challenged the Magistrate's order issuing summonses to them by filing their application in <ORG>. The learned Single Judge before whom the application originally came up for consideration referred to <ORG>. The contention of the learned counsel for the respondents before <ORG> was that even if the allegations made in the appellant's complaints were true no offence under s. 4 of the Act is disclosed, whereas for the appellant it was contended before <ORG> that the aforesaid demand for Rs. 50,000 would constitute an offence under s. 4 .

Reading the definition of "dowry" given in s. 2 of the Act into s. 4 , the learned judges held that for bringing a case under s. 4 of the Act, there must be a demand for dowry as such, that is, for any property agreed to be given as consideration for the marriage, and that as there is no allegation in the complaint that the appellant had agreed to pay the sum of Rs. 50,000 and the respondents thereafter demanded the same no offence under s. 4 of the Act is disclosed in the complaint. In that view the learned judges allowed the respondent's application and quashed the proceedings in the appellants's complaint and the Magistrate's order issuing the processes to the respondents. Hence this appeal by special leave.

The question for consideration is whether the allegation made in the appellant's complaint that there was a demand by the respondents when the ceremonies of the marriage of <NAME> with the second respondent were in progress, for the payment of Rs. 50,000 to be made by the appellant on pain of the marriage ceremonies not being completed if the demand was not complied with under the pretext that the said amount was required for the passage of <NAME> and the second respondent to the United States discloses an offence under s. 4 of the Act. It would be necessary to extract the following relevant ss. 2 to 5 and 8 of the Act for easy reference in order to consider the question:

"2. In this Act, "dowry means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I-For the removel of doubts it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation II- The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code.

3. If any person after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both.

4. If any person after the commencement of this Act, demands, directly or indirectly, from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to six moths, or with fine which may extend to five thousand rupees, or with both;

Provided that no court shall take cognizance of any offence under this section except with the previous sanction of <ORG> or of such officer as <ORG> may, by general or special order, specify in this behalf.

5. Any agreement for the giving or taking of dowry shall be void.

6. Every offence under this Act shall be non- cognizable, bailable and non-compoundable."

According to the appellant's complaint, when the marriage of his daughter <NAME> and the second respondent, the son of the first respondent, was in progress on 19.6.1979, both the respondents demanded from him cash of Rs. 50, 000 in the presence of respectable persons under the pretext that the amount was required for the passage or transport of <NAME> and the second respondent to the United States where the second respondent was employed at that time and they told him that if he did dot comply with their demand by way of dowry further ceremonies in the marriage would not be completed. It is further alleged that some respectable persons who were present at that time persuaded the respondents to complete the marriage ceremonies and formalities and thereafter the marriage ceremonies were completed and that subsequently the second respondent went to the United States in July 1979 alone because the passport and visa of <NAME> had to be arranged which was done some time later while <NAME> was staying in the house of the first respondent, and the respondents continued to persist in their demand for the money when <NAME> was saying in the house of the first respondent without being sent to the United States. Mr. <NAME>, Senior Advocate, appearing for the respondents invited our attention to the decision of a learned Single Judge of <ORG> in <CITATION> (1) and also of another Single Judge of <ORG> in <CITATION> (2) and submitted that the demand for Rs. 50,000 alleged in the complaint would not constitute an offence under s. 4 of the Act as there is no allegation in tile complaint that the appellant consented to pay the amount and that without consent to the payment the sum of Rs. 50,000 alleged to have been demanded does not become dowry within the meaning of s. 2 of the Act which defines "dowry" as meaning "any property or valuable security given or agreed to be given either directly or indirectly-

at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies."

Section 2 contains two explanations with which we are not concerned in this case. In <ORG> decision the question for consideration was what constituted "consideration" for marriage within the meaning of s. 2 of the Act, and <NAME>, J, has observed:

"Thus the definition of the word "consideration" leads to the conclusion that the property or valuable security should be demanded or given whether in the past, present or future for bringing out solemnization of marriage. After the marriage, giving a property or valuable security by the parents of the bride cannot constitute a "consideration" for the marriage unless it was agreed at the time of or before the marriage that such property or valuable security would be given in future."

The complaint i n that case did not spell out that the articles mentioned in the same were given after the marriage as a result of some agreement for the purpose of the marriage. The allegations in the complaint jndicated that those articles were given after the marriage with a view to have smooth sailing and continuance of good material relations. The learned Judge, therefore, held that the articles given in those circumstances did not constitute dowry within the meaning of s. 2 of the Act. We think that the learned judge is right in holding so, and that it is desirable that even such a demand should be prohibited and made punishable in law.

We are concerned in the present case with a complaint in which it has been alleged that the demand for the sum of Rs. 50,000 as dowry was made when the marriage ceremonies between the appellant's daughter <NAME> and the second respondent were in progress, by both the respondents. under the pretext that it was required for the passage of the parties to the marriage to the United States with a threat that if the amount was not paid the marriage ceremonies would not be completed and that there was demand for payment of the amount even after the marriage ceremonies were over when <NAME> was staying in the house of the first respondent after the second respondent went away alone to the United States because the, passport and visa for <NAME> had not been obtained by then. The decision of even the Patna High Court relied upon by Mr. <NAME> relates only to what constitutes "consideration" for the marriage within the meaning of s 2 of the Act. On the other hand, Dr; <NAME>, Senior Advocate, appearing for the appellant invited our attention to a decision of a Division Bench of <ORG> in <CITATION> (1) and submitted that a mere demand for money as dowry for completing the marriage ceremonies on pain of not completing the ceremonies if the money was not given is sufficient to constitute an offence under s. 4 of the Act even though there was no consent on the part of the appellant to comply with that demand. What appeared from the record of the case out of which the decision of <ORG> arose, was that the accused-petitioner filed an application on 6.10.1978 raising a contention that <ORG>, Dadar, Bombay had no jurisdiction to entertain and try the case because the accused and the complainant were residing 'outside the jurisdiction of that Court. A contention was also raised that the complaint was barred by limitation and was, therefore, liable to be dismissed. However, during the arguments in <ORG> it was conceded by the learned counsel for the accused-petitioner that the complaint was filed within the period prescribed. Therefore, the only question that arose for consideration by the learned Judges of <ORG> was the one relating to the jurisdiction of the Metropolitan Magistrate, Dadar, Bombay to entertain and inquire into the complaint. However, the learned Judges have observed in the judgment after extracting s. 4 of the Act that "what is made punishable under that provision is the demand itself, whether direct or indirect, from the parents of a bride or bridegroom". The learned Judges have further observed thus:-

"On the averments made in the complaint the demand is made by the accused by writing a letter from Wadala, Bombay-31. This demand was made through his elder brother who is the son-in-law of the complainant and resides at Agartala. From Agartala the said letter of demand was forwarded by the son-in-law of the complainant to Andheri, Bombay where the complainant is residing. Therefore, the demand by accused was not made at Agartala. He had only used the good offices of his elder brother to forward the letter. Instead of writing a direct letter to complainant demanding dowry, the demand was made through the elder brother who is residing at Agartala. Still the demand is by accused and is made from Wadala at Bombay. The demand became complete when the complainant received the letter at Andheri, Bombay. Hence the dowry was demanded at Bombay. The offence was partly committed at Wadala, Bombay, from there the dowry was demanded. It was also committed at Andheri, Bombay, where the complainant received the demand letter. It is further alleged by the complainant in the complaint that the marriage of <NAME> which was almost settled, could not take place due to the demand of dowry made by the accused. This consequential result or consequence of the demand also took place at Bombay. Wadala is within the local jurisdiction of Metropolitan Magistrate, <NAME>. Letter of demand was actually sent from Wadala, Bombay. Hence, in any case it can safely be said that offence as alleged is partly committed at Wadala also. Though a contention was raised before the trial court that neither accused nor complainant are residing within the jurisdic- tion of the <NAME> Court, now it is an admitted position that accused resides at Wadala. Even if it is held that offence became complete when complainant received letter at Andheri, Bombay, still it will be triable by <ORG>. Whether it is <NAME> or <ORG> will not make any difference. On tho other hand we are told that <NAME> Court is nearer to the residence of accused. The point raised is too technical and no prejudice will be caused to the accused nor on that count it could be said that trial is vitiated; or will result in failure of justice. Hence there is no substance in this contention".

It appears from a reading of this judgment that it was either not disputed before the learned Judges or that it was presumed that a mere demand for property as consideration for the marriage taking place would constitute an offence under s. 4 of the Act.

The Dowry Prohibition Act , 1961 is intended to prohibit the giving or taking of dowry, and <ORG> has made every offence under the Act non-compoundable by s. 8 of the Act. By s. 5 it has been enacted that any agreement for the giving or taking of dowry shall be void. Section 3 makes abetment of the giving or taking of dowry an offence. No doubt, according to s. 2 of the Act "dowry" is any property or valuable security given or agreed to be given either directly or indirectly at or before or after the marriage as consideration for the marriage but does not include dowar or mahr in the case of person to whom the Muslim Personal Law (Shariat) appear applies. It would appear from s. 2 that consent to comply with the demand for any property as consideration for the marriage would alone make the property or valuable security given or agreed to be given directly or indirectly, "dowry" within the meaning of the Act. But having regard to the dominant object of the Act which is to stemp out the practice of demanding dowry in any shape or form either before or after the marriage, we are of the opinion that the entire definition of word "dowry" should not be imported into s. 4 which lays down that "if any person after the commencement of this Act, demands directly or indirectly from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both". According to Webester's New World Dictionary, 1962 edn. bride means a woman who has just been married or it about to be married, and bridegroom means a man who has just been married or is about to be married. If we give this strict meaning of a bride or a bridegroom to the word bride or bridegroom used in s. 4 of the Act property or valuable security demanded and consented to be given prior to the time when the woman had become a bride or the man had become a bridegroom, may not be "dowry" within the meaning of the Act, We are of the opinion that having regard to the object of the Act a liberal construction has to be given to the word "dowry" used in s. 4 of the Act to mean that any property or valuable security which if consented to be given on the demand being made would become dowry within the meaning of s. 2 of the Act. We are also of the opinion that the object of s. 4 of the Act is to discourage the very demand for property or valuable security as consideration for a marriage between the parties thereto. Section 4 prohibits the demand for 'giving' property or valuable security which demand, if satisfied, would constitute an offence under s. 3 read with s. 2 of the Act. There is no warrant for taking the view that the initial demand for giving of property or valuable security would not constitute an offence and that an offence would take place only when the demand was made again after the party on whom the demand was made agreed to comply with it. The learned Magistrate was, therefore, right in proceeding on the basis that the allegations in the complaint prima facie constitute an offence under s. 4 of the Act and issuing processes to the respondents. <ORG>, we cannot refrain from observing, might well have refused to invoke its inherent powers at the very threshold in order to quash the proceedings, for these powers are meant to be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a citizen. The present was not such a case. We find that the complaint had been filed after obtaining the previous sanction of <ORG> or of such officer as <ORG> may by general or special order specify in this behalf as required by the proviso to s. 4 of the Act. Mr. <NAME> who appeared for the second respondent, State of Maharashtra, was not in a position to tell us about what the exact stand of <ORG> in this appeal is as to whether it supports or opposes the contention of the appellant that the allegation made in the complaint constitutes an offence under s. 4 of the Act. For the reasons stated above, we allow the appeal and direct the learned Judicial Magistrate, First Class to take further proceedings on the complaint and dispose of the case according to law.

P.B.R. Appeal allowed.


JUDGMENT

1. It is admitted that the sole question for our decision in this case is whether or not an appeal lay to the District Judge from the order of the first Subordinate Judge, dated 11th December, 1886. If there was no appeal from that order, the order of the District Judge, dated 27th May, 1887, was passed without jurisdiction, and although there would be no appeal against it to this Court we have intimated that in this case we are prepared to consider this appeal as an application under Section 622 of the Code to have that order set aside on the ground that it was made without jurisdiction.

2. The facts as found by the District Judge are these: <ORG> and <ORG> had cross-decrees, <ORG>'s decree being for the larger amount. <ORG> had also a decree against <ORG>, in execution of which he applied to attach <ORG>'s decree against <ORG> There is some question as to the date on which this application was granted, but the Judge finds it was prior to the 18th September, on which date an application by <ORG> to execute his decree for the balance after setting off the smaller decree (<ORG>nder Section 246 of the Code of Civil <ORG>rocedure) was rejected. On the matter coming again before the <ORG>-in what manner it came before the <ORG> does not clearly appear upon the proceedings--the Subordinate Judge cancelled his former order attaching <ORG>'s decree in execution of E's decree, and directed that <ORG>'s decree should be executed. <NAME> thereupon appealed to the District Judge, and the question is whether an appeal lay against the Subordinate Judge's order. It is clear that no appeal would lie unless the order complained of can be regarded as an order made under Section 244 of the Code, that is, an order determining a "question arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree." Now the question related to the execution, discharge or satisfaction of <ORG>'s decree against <ORG>, and the point for our consideration is whether Having been allowed to attach that decree, can be treated as the representative of <ORG> in the determination of that question--that is to say, whether a person who attaches a decree is a representative of the decree-holder. Reading Section 232 of the Code with Section 273, we are of opinion that he must be so regarded. Section 273 distinctly provides that in certain cases the attaching creditor may himself apply to execute the decree. The District Judge appears to think that this can only be done in cases which come within that distinct provision-that is, in cases where the decree which has been attached and the decree which is sought to be executed are the decrees of different <ORG>s. But there would seem to be no sufficient reason for this restriction. The section rather seems to contemplate the right of the attaching creditor in every case to enforce execution of the decree which he has attached. Where both decrees are decrees of the same <ORG>, the section assumes that that <ORG> has jurisdiction to execute the attached decree-that is, its own decree-on the application of the attaching creditor. It is only where the decree attached is the decree of another <ORG> that a special provision is necessary, and accordingly the section specially provides that in such a case the attaching creditor must make a formal application to the <ORG> which made the decree to execute its own decree which he has attached. It would seem then that a creditor who attaches a decree is in much the same position as the transferee of a decree under Section 232, and we think that he must be regarded as a representative of the decree-holder under Section 244(c). For these reasons we are of opinion that an appeal did lie to the District Judge, and that this appeal must be dismissed with costs.


JUDGMENT <NAME>, J.

(1) The plaintiffs have filed a suit for perpetual injunction alleging infringement of their registered trade mark and have also prayed for a decree for rendition of accounts of profits against the defendants. Along with this suit, an application under Order 39 Rules 1 and 2 has also been filed for an interim injunction against the defendants, for restraining them from infringing the said mark.

(2) Facts, relevant for the disposal of the application for injunction, may first be noticed. It is alleged by the plaintiffs that they are the proprietors of the following two registered trade marks : "(A)Trade mark <ORG> with the device of <ORG> under No. 260466 dated 6.11.1969 claiming user since 22.2.196J in respect of pencils, refills for propelling pens and pencils, pen sharpeners, pens, fountainpeos, eraserspin, clips and staples included in class 16. (b) Device of <ORG> under No. 283730 dated 27.10.1972 in respect of pencils all kinds, erasers, refills for propelling pens and pencils, pencil sharpners, pens, fountain pens, pins, clips, wire staples for stapling presses and pins."

According to the plaintiffs, the aforesaid .marks were adopted by them in the year 1961 and after registration the same are still valid and subsisting in the register of Trade Marks. It is the case of the plaintiffs that they are incurring large expense of thousands of rupees by way of advertisement and the sale of their products under the trade mark of <ORG> is over eight crores. The plaintiffs have also placed on record copy. The certificate of their registered trade mark along with their registered label. Some of the labels and cartons bearing the said mark and advice are printed in red colour. One such label contains the name '<ORG>' and also has the photograph of the dancing <ORG>, which is the advice which has been registered.

(3) According to the plaintiffs, in the middle of the year 1985 they got to know that the defendants ha4 surreptitiously got registered a copyright, with <ORG>, a label similar to that of the plaintiffs in respect of pins. The defendants got this copyright in respect of pins under the name of <NAME> and a copy of the carton, which has been filed in Court, shows that the defendants have not only used the registered name of the plaintiffs, namely, <NAME> but have also used the device of the dancing <NAME> which is identical to the dancing figure which has been registered by the plaintiffs with the Registrar of Trade Marks.

(4) It is alleged by the plaintiffs that the conduct of the defendants is fraudulent inasmuch as they are using the trade mark and the device of <ORG> in respect of stationery pins even though the plaintiffs are the registered owners of the said trade mark and device. This alleged 'deliberate and dishonest act on the part of the defendants is stated to be causing a damage to the plaintiffs' name, goodwill and business. According to the plaintiffs, pecuniary compensation will not afford them an adequate relief and if injunction is not granted, the plaintiffs will suffer irreparable loss and injury to the business, name, reputation and goodwill.

(5) It is further contended that after the plaintiffs go to know about the wrongful registration of the copyright by the defendants, they applied in June, 1985 with <NAME> for rectification and cancellation of the defendants' registration. The proceedings so initiated are still stated to be pending before <NAME>.

(6) On the basis of the allegations contained in the plaint and the application, supported by the documents placed on record, an ad interim ex parte injunction was granted, inter alia, restraining the defendants from manufacturing or selling pins and clips in the carton bearing the trade mark and device Nataraj of which trade mark and device the plaintiffs were the registered owners.

(7) The defendants filed their written statement and reply to the application. It is not necessary to refer to the averments made in the written statement and the reply, with regard to the merits of the case. in any great detail because the main objection which has been raised therein, and which is the only contention which has been argued before me at length by the learned counsel for the defendants, is that there has been an inordinate delay on the part of the plaintiffs In filing the present suit. It is contended by the defendants that the plaintiffs were aware of the use of the trade mark Nataraj by the defendants since the year 1982, when the advertisements of the plaintiffs and the defendants appeared in the Magazine under the name '<ORG> of March, 1982. It is contended that there has been delay of more than six years in filing the present suit. It is also alleged that the plaintiffs have not used the trade mark Nataraj for paper pins and clips on a commercial scale prior to the defendants. The defendants have alleged, in their reply to the application under Order 39 rules I and 2, that the sale of their goods between the year 1980-81 and 1987-88 ranged between Rs. 6,96,799 90 and Rs. 11.39,978.62 per year.

(8) The plaintiffs filed their rejoinder to the reply filed to the application under Order 39 rules I and 2. According to the plaintiffs, they became aware of the use of the trade mark Nataraj by the defendants only in June, 1985. It is also the case of the plaintiffs that they have sales of pins and clips under the trade mark Nataraj It is further alleged that as the plaintiffs are the registered proprietors, they have the exclusive right to use the trade mark Nataraj and that it is not necessary for them to have huge sales in order to get protection.

(9) The main question which really arise for consideration before me is whether the plaintiffs are not entitled to the grant of an interim injunction because of inordinate delay or lakes or acquiescence, as alleged by the defendants. The defendants have not sought to contend before me that the use of the mark does not infringe the plaintiffs' registered trade mark. In other words, the argument procee.ded on the basis that the mark used by the defendants was similar to the registered trade mark of the plaintiffs. <NAME> fairly conceded that if the defendants' defense of the plaintiffs being guilty of inordinate delay or acquiescence is not accepted then, in that case, interim injunction may have to be issued because there is, admittedly, an infringement by the defendants of the plaintiffs, registered trade mark.

(10) Under Section 28(1) of the Trade and Merchandise Marks , 1958, the registered proprietor of a trade mark gets the exclusive right to use the said mark in relation to the goods in respect of which the trade mark is registered and the said owner also gets a right to obtain relief in respect of infringement of the trade mark in the manner provided by the Act Section 29 of the Act, inter alia, provides that a registered trade mark is infringed by a person who, not being the registered proprietor of the trade marker a registered user thereof, either uses or permits the use of the trade mark which is identical wither deceptively similar to the registered trade mark in relation to any goods; Sub-section (2) of Section 29 relates to marks which are registered in part B of the Register and it is not necessary to refer to the said provision because in the present case it is an admitted case of the parties that the marks of the plaintiffs have been registered in Part A of the Register. It may, however, be noted that under Section 29(2) an injunction in respect of a trade mark registered in part B of the Register will not be granted if the defendant establishes that the use of the mark, of which the plaintiff complains, is not likely to deceive or cause confusion or to indicate a connection in the course of trade between the goods in respect of which the trade mark is registered and some person having the right either as a registered proprietor or as a registered user, to use the trade mark. Section 106 of the said Act specifically provides for the <ORG> being entitled to grant the relief of an injunction in any suit for infringement or passing off which may be instituted before it. The relief of injunction may be in addition to prayer for damages or an account of profits, together with .or without any order for the delivery up of the infringing labels and marks for destruction or erasure.

(11) While an action for infringement is taken in respect of trade marks which are registered, an action for passing off is in respect of goods for which the marks have not been registered but in respect of which marks, over a period of time, the user has acquired proprietory right. The difference between an action -for infringement any for passing off has been succinctly explained by <ORG> in the case of <CITATION> , . The Court observed that there is a basic difference between the causes of action and the right to relief in suits for passing off and for infringement of a registered trade mark and it was also incorrect lo equate the essentials of a passing off action with those in respect of an action complaining of an infringement of a registered trade mark. The following passage clearly brings out the essential similarities and the differences in respect of the reliefs which may be claimed in the aforesaid two types of causes of action : "THE finding in favor of the appellant to which the learned Counsel drew our attention was based upon dissimilarity of the packing in which the goods of the two parties were vended, the difference in the physical appearance of the two packets by reason of the variation in their colour and other features and their general gel-up together with 'the circumstance that the name and address of the manufactory of the appellant was prominently displayed on his packets and these "features were all set out for negativing the respondent's claim that the appellant had passed off his goods as those of the respondent. These matters which are of the essence of the cause of action for relief on the ground of passing off play but a limited role in an action for infringement of a registered trade mark by the registered proprietor who has a statutory right to that mark and who has a statutory remedy in the event of the use by another of the mark or a colourable imitation thereof. While an action for passing off is a common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another .that is not the gist of an action for infrigement. The action for infringement is , statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of "the exclusive right to the use of the trade mark in relation to those goods" (Vide S. 21 . of the Act). The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in the case of an action for infringement. No doubt, where the evidence in respect of passing off consists merely of the colourable use of a registered trade mark, the essential features of both the actions might coincide in the sense that what would be a colourable limitation of a trade mark in a passing off action would also be such in an action for infringement of the same trade mark. But there the correspondence between the two ceases. In an action for infringement, the plaintiff must no doubt, make out that the use of the defendant's mark is so close either visually, phonetically or otherwise and the court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated. Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get-up, packing and other writing or marks on the goods or on the packets in which be offers bids goods for sale show marked differeaces, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; where- 's in the case of passing off-, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.

(12) As already observed earlier, in the instant case the action is far infringement of the plaintiff's registered trade mark. As stated 6^ <ORG> in Durga case (supra), for such an actio to succeed the plaintiff has merely to show that the essential features of the trade mark have bee adopted by the defendant. This is because in such an invoke his statuary right granted under Section 28 of the trade gives him the exclusive right to (13) Experience has shown that in cases involving infringement of intellectual property rights, considerable importance is attached to the decision of the application for the grant of interim relief. Filing of such an application has been commented upon by <NAME> in Law of Trade Marks and Trades Names at page 320 as follows ;

"THE plaintiff in an infringement or "passing-off" action may move, as soon as the action is commenced, for an interlocutor in junction to restrain the defendant, until the hearing of the action or farther order, from continuing or committing the infringement or deceptive conduct of which he complains. Quite apart from the advantages of stopping the Infringement without delay, experience shows that a successful motion for interlocutory injunction normally puts and end-to the litigation and the infringement with a great saving in expense compared with a full trial. Accordingly such a motion should be considered in every case-and accordingly, proprietors of trade marks should make it a rule to take action upon every instance of infringement with the necessary speed to enable such a motion to be launched. In extremely urgent <ORG> an ex parte injunction may be obtained before the full hearing of the emption or a <NAME> piller order, for inspection the defendant s premises without prior warning and discovery of his records, may be obtainable."

The principles on which interlocutory relief is granted in such cases in England is clear from the following passage from <NAME>'s book at page 321 "A plaintiff applying for interlocutory relief must show an arguable case defendant, and that (if he is right) continuance of the defendant s activities until the trial is likely to cause substantial damage to him that is irreparable in the sense that it will not be compensated by an order for damages at the trial. He need not in general show a strong prima facie case-say, a 20 per cent chance of success at the trial will do-but something more is needed than a case that will avoid being struck out as frivolous or vexatious. In trade-mark infringement cases irreparable damage, in this sense is relatively easily shown, since infringement may easily destory the value of a mark or at least nullify expensive advertising in a way that Js hard to quantify for the purpose of an inquiry into Damages."

(14) The aforesaid opinion was based on a number of cases including the case of <ORG> <NAME>, (1975) R PC. 53. The case of <ORG> was analysed by <NAME> in his book "A practical Guide to Patent Law" and he summarised the judgment of Lord <NAME>, in which he had enunciated the need for step-wise approach to the grant of an interlocutory relief, in the following words : "(1)Does P (Plaintiff) have an arguable case? If the answer is 'no', P fails in liming. But if the answer is 'Yes', proceed to step (2). (2) Assuming that P was to win at trial, can he be adequately compensated by damages? If the answer is 'Yes', then no injunction. But if the answer is 'no', proceed to step (3). (3) Assuming, conversely, that D (defendant) was to win at trial, could D be adequately compensated for his interim exclusion from the market by P's cross-undertaking in damages? If the answer is 'no', then no injunction but if the answer is 'yes', then the adequacy in itself provides no ground to refuse injunction-which conclusion is not tantamount to finding that an injunction should be granted. So then (as well as in any case where 'adequacy' of damages in step(2)or (3)is-on the evidence adduced-doubtful) proceeds to step (4). (4) Where lies the balance of convenience generally ? If the balance is lilted neither way then proceed to step (5). "(5) Where lies the status quo? This should be preserved, as far as possible. But if this test still fails to tip the scales one way or the other, then proceed to the final step (6). (6) Which party has the apparently stronger case on the evidence adduced? Decide in favor of the stronger party, provided that there is a clear disproportionate in relative strength."

(15) The position in' America is not very different from that what has been stated bereinabove. In 'Trade-marks and Unfair Competition' by <NAME>, relying upon the decision in America, five basic criteria have been laid down which must guide the <ORG> while exercising its discretion whether to grant a preliminary injunction or not. These five criteria are as follows : "(1)Can plaintiff show a probability of success at the ultimate trial on the merits? (?) Can plaintiff show that he will suffer "irreparable injury" pending a full trial on the merits? (3) Will a Preliminary injunction preserve the "status quo" which preceded the dispule? (4) Do the hardships balance in favor of plaintiff ? (5) Is a preliminary injunction necessary to protect third parties.

(16) It has been contended by the learned counsel for the defendants that there has been inordinate delay on the part of the plaintiffs in approach- ing this Court and, therefore, on this ground alone no interim relief should be granted. It is also submitted by Mr. <NAME> that l,e is entitled, in this case, to raise successfully the other equitable defense of the plaintiffs having acquiesced to the defendants user of the impugned mark.

(17) It has first to be considered as to that is the meaning which has been ascribed to the expressions "inordinate delay", "lakes" and "acquiescence".

(18) <NAME>, learned counsel for the defendants, has fairly conceded that mere delay, without anything more, cannot by itself be regarded as a good defense. This also seems to be the correct position in law. 'Inordinate delay', however, has been a factor which has been taken into consideration while declining the relief of a grant of temporary injunction. In the case of <ORG> v. <ORG>, (1969) <ORG>, the delay in approaching the <ORG> was nearly 100 years. The question in that case was whether the plaintiffs were entitled to a declaration that they could call their product <ORG>. The defendants filed a counter-claim for an injunction to restrain the plaintiffs from passing off their wines as Sherry which was the produce of Jerez District of Spain. The <ORG> held that the word "Slerry" had been used for British products of the same type of wine for nearly a hundred years and, therefore, there was inordinate delay on the part of the defendants and they were not entitled to the grant of an injunction. A declaration was issued whereby the plaintiffs were entitled to call their products <ORG>. In the case of <NAME>, <NAME> v. <NAME>, <NAME>, (1958) R.P.C. 335 .an injunction was not granted because the plaintiffs had approached the <ORG> after nearly 30 years. Inordinate delay' would, therefore, be delay of such a long duration that the defendant could have come to the conclusion that the plaintiff has, possibly, abandoned his right to seek relief or to object to the defendant using the trade mark. "Equity aids the vigilant, not those who slumber on their rights."

(19) It would appear that 'inordinate delay', which has never been defined by the <ORG> so far, would be analogous or similar to lakes'. In <NAME> v. Disney Productions, 263 F2d 229 it was observed by <ORG> in U.S.A. as follows : "MERE passage of time cannot constitute lakes, but if the passage of time can be shown to have lulled defendant into a false sense of security, and the defendant acts in reliance thereon, lakes may, in the discretion of the trial court, be found".

It would follow, logically, that delay by itself is not a Sufficient defense to an action for interim injunction, but delay coupled with prejudice caused to the defendant would amount to lakes'. As observed by <NAME> at page 383 "lakes==delay X prejudice. In this formula.it is the magnitude of the product of delay and prejudice which must be weighed, not the magnitude of solely the quantum of delay or prejudice alone. For example, in one case, a long delay coupled with even a slight amount of prejudice may suffice to prove an adequate defense of lakes. Yet, in another case, a short delay coupled with a great amount of resulting prejudice to defendant may also suffice for lakes". It has been emphasised that it is for the defendant to show that there has been prejudice caused by reason of the delay and that it would be unfair to injunct the defendant from carrying out its activities.

(20) "lakes" and "Inordinate delay" however, are not similar to "acquiescence". Acquiescence is a different concept which has been explained by <NAME> at page 310 paragraph 15.45 as follows : "THE classic case of acquiescence proper is where the proprietor, knowing of his rights and knowing that the infringer is ignorant of them, does something to encourage the infringer's misapprehension, with the result that the infringer acts upon bids mistaken belief and so worsens his position. It seems clear that something less than that is needed to offer a defense, but how much less is not clear. The current tendency is to hold that a defense of acquiescence or lakes may be set up whenever it is unconscionable for the plaintiff to deny anything that he (consciously or unconsciously) has allowed or encouraged the defendant to believe. Mere failure to sue, without some positive act of encouragement, is not in general enough to give a defense. A defendant who infringes knowing of the plaintiff's mark can hardly complain if he is later sued upon it, nor is a defendant who starts to infringe without searching the Register of Trade Marks is any better position that if he had searched and so learned of the plaintiff's mark. Acts of the proprietor done in ignorance of the infringement, or even done without his own registration in mind, will not amount to acquiescence. A defense of estoppel by acquiescence is to be distinguished from a defense that by delay the mark has become public i juris.

One of the cases relied upon by <NAME> is that of <NAME> v. Eleclrlx,71 R P.C. 23. In that case the defendants bad been using the mark Electrix for a period of ten yeara. The plaintiffs filed a suit for injunction alleging that the use of the mark by the defendant amounted to an infringement of the plaintiffs' registered mark. The defendant alleged that there was a bona fide user of the mark by them. It was sought to be contended that the plaintiffs had acquiesced to the defendants' user and, therefore, were not entitled to any relief. Evershed M.R, first dealt with the question as to what would amount to acquiescence. It was observed by him as follows : "UPON this matter, a great deal of learning has been referred to, and we have also had our attention drawn to a number of cases. The latter include the well-known statement in <NAME> v. <NAME> (mo), 15 Ch. D. 96 by <NAME>, J. (as he then was) at P. 105. He said this : "It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights". Let me pause here to say that I do not understand that, by the word "fraudulent", the learned Judge was thereby indicating conduct which would amount to a common law tort of deceit, ' What, then, are the elements or requisites necessary to continue fraud of that description ? In the first place the plaintiff must have made mistake as to his legal rights. Secondly, the plaintiff must have 64 expended some money or must have done some act (not necessarily upon. the defendant's land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. If he does not. there is nothing which calls upon him to assert his own rights. Lastly. the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which be has done, either directly or by abstaining from asserting his legal right". In reading that passage, it is perhaps necessary to note (because it makes it at first sight a little more difficult to follow) that the position of plaintiff and defendants as they are usually met with are there transposed, and that one of the parties who is there spoken of as the plaintiff corresponds with the present case with the Defendants, and vice versa.

(21) Applying the aforesaid test, <ORG> concluded that there was no fraud which had been played on the defendant by the plaintiff and that the plaintiff was not guilty of acquiescence. A contention was also raised that for a period of nearly ten years no action had been taken by the plaintiff and, therefore, no relief should begranted. This contention was rejected by <ORG> in the following words : "Ithink, upon analysis, that Mr. <NAME>'s argument must, in the end of all, come to this, that the owner of a registered trade mark who for a substantial period of time has lain by and not asserted his rights has lost those rights, notwithstanding that they are, rights conferred, upon him by statute. I think so to hold, at any rate in a case where the length of time involved is no greater than in this case, would be to introduce a wholly novel-nay, revolutionary doctrine, and I think also that it would be contrary to the principles laid down by the decided cases.

The Court was of the opinion that unless something is added to delay the defendant could not continue to use the infringing mark.

(22) It is not very clear; and this is still a very grey area, as to whether acquiescence or lakes will be regarded as a good defense to the grant of a permanent injunction in the case of infringement of a registered trade mark.

(23) Some Courts have declined to grant interim injunction, on ground of lakes or acquiescence, while not refusing permanent injunction. In the American case of <ORG> v. <ORG>, (1968 Dc NY) 286, F Supp. 132 it was observed as follows : "WHILElakes may not be a sufficient bar to a permanent injunction, it may well be a bar to preliminary relief. The preliminary injunction is sought upon the theory that there is an urgent need for speedy action to protect the plaintiff's rights. By sleeping on its rights a plaintiff demonstrates the lack of need for speedy relief and cannot complain of the delay involved pending any final relief to which it may be entitled after a trial on all the issues".

(24) As observed by <NAME> at page 388 "Later cases have developed this rule into a two tier approach : a given set of facts showing plaintiff's delay and resulting prejudice to defendant may bar monetary recovery but will not bar the issuance of an injunction against future infringements. <ORG> later held while lakes may not be sufficient to deny relief against instances of "conscious infringement or fraudulent imitation", lakes could bar relief against a good faith, "indecent'' infringer. That is, <ORG> held that where defendant, in good faith, and without any prior notice of plaintiff's rights, selected a mark confusingly similar to plaintiff's mark, plaintiff's delay constituting lakes would bar the issuance of an injunction as well as the granting of damages and profits.

(25) "HOWEVER, if defendant acted fraudulently or with knowledge of plaintiff's rights, then relief by. injunction is accorded, even though lakes and acquiescence bar the recovery of damages or profits... ..The Courts have been very reluctant to deny injunctive relief because of plaintiff's delay when it appears that defendant knowingly and deliberately adopted the mark which is an infringement. If such facts are shown, only in an exceptional case will lakes bar injunctive relief". In <ORG> v. <ORG>, 175 F2d 310 the Court referred to "the doctrine that at fraudulent infringer cannot expect tender mercy of a court of equity ?o that mere delay by the injured party in bringing suit would not bar injunctive relief".

(26) Dealing with delay and the question of grant of interlocutory injunctions, <NAME> in his Treatise "On the Law and Practice of Injunctions", Sixth Edition at pages 360-361 observed as follows : "MERE delay after knowledge of the infringement to take proceedings. not sufficient to call the Statute of Limitations into operation, or where the infringement continues, is not, it seems, a bar to the right of an injunction at the trial. Lapse of time unaccompanied by anything else is, it seems, no more a bar to a suit for an injunction in aid of the legal right than it is to an action of deceit. But delay may cause the Court to refuse an interlocutory injunction, especially if the defendant has built up a trade in which he has notoriously used the mark.

(27) It appears difficult for me to comprehend the distinction which the courts have sought to make between the grant of interim injunction and permanent injunction. If on the facts which are clearly discernible from the record it appears that after trial a permanent injunction is likely to be, granted, notwithstanding the delay on the part of the plaintiff in approaching the Court, there appears to be no reason as to why temporary injunction should be refused.

(28) It is no doubt true that trade mark, copyright or a patent; belongs to a registered owner and, in 'the sense, is his monopoly because he has the exclusive right to use the same. Nevertheless, specially as far as trade marks are concerned, the said mark is also meant to distinguish the goods of the owner of the mark from that of the other manufacturers. This distinguishing mark is primarily, probably solely, for the benefit of the consumer. A trade mark is a representation by the owner to the consumer informing him that the goods in question bearing a particular trade mark have been manufactured or marketed by the owner of the mark. With the passage of time, if the goods are of good quality and become popular, the trade mark becomes well-known. People buy the goods after seeing the trade mark which is applied to them. Specially in Third World Countries, where level of education is not very high and where the consumer may not be proficient enough to read what is written, possibly in a language which is unknown to the purchaser, the trade mark assumes greater significance. It is the duty of the courts to protect the interest of such unwary customers. It is for the court to see that an unscrupulous infringer does not cheat the general public by selling spurious goods by using trade marks which do not belong to him and which arc associated with goods of repule. It is no doubt true that giving protection to the consumer would necessarily amount to giving relief to the plaintiff, even though plaintiff may have slept over his right for a number of years. But,when it becomes known that stolen property, and infringement amounts to stealing another person's intellectual property, is being sold in the market to unwary customers, it would be in the public interest that protection is granted to the members of the public. It is not unknown, and indeed it is unfortunate though common, that spurious medicinefr, life saving drugs and other articles of general public use are illegally made or manufactured and sold in the market. The manufacturer of the genuine products may not be adversely affected by such sales and may not choose to approach the <ORG> for a number of years but, as far as the general public is concerned, the sale of spurious goods results in the public spending good money for bad things. It is the general public which is being cheated.

(29) If an action is taken by the registered owner and no interim interim injunction is granted, the effect is that goods bearing the infringing mark or spurious goods would continue to be sold in the market. After a number of years when the case is finally disposed of, after trial, and the plaintiff succeeds and gets a permanent injunction then, possibly, the plaintiff may also be compensated by his being awarded damages or an account of profits. In that sense the non-grant of the interim injunction would not, ultimately, prejudice the plaintiff for he may be compensated with payment of money but during this period when the defendant is allowed to continue to infringe the intellectual property it is the consumer or the purchaser who alone suffers and who ultimately cannot be compensated. Therefore, in order to curb the menace of manufacture, production and sale of spurious goods and the blatant violation of intellectual property it will be proper for the court to take into consideration the interest of the general public. In this regard reference may usefully be made to the following observations of <NAME> at page 346, para 30.21 which deals with the protection of third parties: "SOME courts also consider the necessity of protecting third parties. In trademark infringement cases, "third parties" means the buying public. If the equities are closely balanced, the right of the public not to be deceived or confused may turn the scales in favor of a preliminary injunction".

(30) It would appear to be difficult to accept that relief of temporary injunction should not be granted, because of the delay on the part of the plaintiff, even though the court feels, at that point of time, that ultimately permanent injunction will have to be granted.

(31) Even though there may be some doubt as to whether lakes or acquiescence can deny the relief of a permanent injunction, judicial opinion has been consistent in holding that if the defendant acts fraudulently with the knowledge that he is violating the plaintiff's rights then in that case, even if these is an inordinate delay on the part of the plaintiff in taking action against the defendant, the relief of injunction is not denied. The defense of lakes or inordinate delay is a defense in equity. In equity both the parties must come to the <ORG> with clean hands. An equitable defense can be put up by a party who has acted fairly and honestly. A person who is guilty of violating the law or infringing or usurping somebody else's right cannot claim the continued misuse of the usurped right It was observed by <NAME>, J. in the matter of an application brought by <NAME> and Coy. Ld" 63 R.P.C. 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 be could not regard the discreditable origin of the user as cleansed by the subsequent bistory. In other words, the equitable relief will be afforded only to that party who is not guilty of a fraud and whose conduct shows that there had been, on bids part, ?n honest concurrent user of the mark in question. If a party, for no apparent or a valid reason, adopts, with or without modifications, a mark belonging to another, whether registered or not, it will be difficult for that party to avoid an order of injunction because the <ORG> may rightly assume that such adoption of the mark by the party was not an honest one. The <ORG> would be justified in concluding that the defendant, in such an action, wanted to cash in on the plaintiff's name and reputation and that was the sole, primary or the real motive of the defendant adopting such a mark. Even if. in such a case, there may be an inordinate delay on the part of the plaintiff in bringing a suit for injunction, the application of the plaintiff for an interim injunction cannot be dismissed on the ground that the defendant has been using the mark for a number of years. Dealing with this aspect <NAME> in his "The Law of Unfair Competition and Trade-Marks". Fourth Edition, Volume Two at page 1282 noted as follows: "WHERE infringement is deliberate and willfull and the defendant acts fraudulently with knowledge that he is violating plaintiff's rights, essential elements of estoppel are lacking and in such a case the protection of plaintiff's rights by injunctive relief never is properly denied. "The doctrine of estoppel can only be invoked to promote fair dealings".

(32) It would appear to me that where there is an honest concurrent user by the defendant then inordinate delay or lakes may defeat the claim of damages or rendition of accounts but the relief of injunction should not be refused. This is so because it is the, interest of the general public, which is the third party in such cases, which has to be kept in mind. In the case of inordinate delay of lakes, as distinguished from the case of an acquiescence, the main prejudice which may be caused to the defendant is that by reason of the plaintiff not acting at an earlier point of time the defendant 'has been able to establish his business by using the infringing mark. Inordinate delay or lakes may be there because the plaintiff may not be aware of the infringement by the defendant or the plaintiff may consider such infringement by the defendant as not being serious enough to hurt the plaintiff's business. Nevertheless, if the Court comes to the conclusion that prejudice is likely to be caused to the general public who may be misled into buying the goods manufactured by the defendant thinking them to be the goods of the plaintiff then an injunction must be issued. The Court may, in appropriate cases, allow some time to the defendants to sell off their existing stock but an injunction should not be denied.

(33) Where the plaintiff, however, is guilty of acquiescence, there different considerations may apply. As already noted, acquiescence may mean an encouragement by the plaintiff to the defendant to use the infringing mark. It is as if the plaintiff wants the defendant to be under the belief that the plaintiff does not regard- the action of the defendant as being violative of the plaintiff's rights. Furthermore, there should be a tacit or an express assent by the plaintiff to the defendant's using the mark and in a way encouraging the defendants to continue with the business. In such a case the infringer acts upon an honest mistaken belief that he is not infringing the trade mark of the plaintiff and if, after a period of time when the infringer has established the business reputation, the plaintiff turns around and brings an action for injunction^ the defendant would be entitled to raise the defense of acquiescence. Acquiescence may be a good defense even to the grant of a permanent injunction because the defendant may legitimately contend that the encouragement of the plaintiff to the defendant's use of the mark in effect amounted to the abandonment by the plaintiff of his right in favor of the defendant and, over a period of time, the general public has accepted the goods of the defendant resulting in increase of its sale. It may, however, be stated that it will be for the defendant in such cases to prove acquiescence by the plaintiff. Acquiescence cannot be inferred merely by reason of the fact that the plaintiff has not taken any action against the infringement of its rights.

(34) Applying the aforesaid principles to the present case, I find that there is no reason as to why the ad interim injunction should not be made absolute. As already noted, it has been strenuously contended by the learned counsel for the defendants that the plaintiffs are guilty of inordinate delay, lakes and acquiescence but before considering this, an important factor which has to be seen is whether the user or adoption by the defendant was honest or fraudulent.

(35) The facts on the record speak for themselves. It is not in dispute that the plaintiffs are the owners of the registered trade mark <NAME> including the device. The defendants chose not to approach <ORG> but filed an application under the Copyright Act for registration of the copyright. This application was filed and copyright registered long after the mark of the plaintiff had been registered under the Trade Marks Act . The defendants have used the same spelling for the word "<NAME>" as have been used by the plaintiff- Ordinarily <NAME> is spelt as 'Natraj' but the plaintiff in its registered trade mark had spelt it as <NAME>. The defendants have also spelt their mark with an additional a after the letter 't'. Not only this, the device of the dancing <NAME> which was registered by the plaintiff is the one which has been copied by the defendants. There are innumerable poses of the dancing <NAME> which are known in this country. The device of the plaintiff which has been registered appears to have been adopted from the photograph of a bronze piece of <NAME>. The mark used by the defendants is identical to this dancing figure.

(36) Moveover, on the cartons of the defendants neither the name nor the address of the manufacturer is indicated. If the defendant wanted to establish their independent user of the word '<ORG>' along with the device, on would have expected the defendants to write their name and address on the cartons. By not writing the name and address to the manufacturer on the cartons of the defendants, it appears to me that an effort was being made to mislead the general public. The endeavor clearly was that persons should buy pins and dips manufactured by the defendants assuming that the same were manufactured by the plaintiffs. 'The plaintiffs are not only the registered owners of the name and device <ORG> but their sales are over 8 crores a year. The trade mark is famous all over India. If the defendants had written their name and address on the cartons, it is possible that some persons may not have bought the same but in the absence of the name of the manufacturer being there on the cartons, the general public were being led to believe that it is the true owner of the trade mark <ORG> who had manufactured the said pins. In my opinion the use or adoption of the mark <ORG> by the defendants was clearly fraudulent.

(37) It the submitted by the learned counsel for the defendants that the plaintiffs have not objected to the use of the mark by the defendants. It was submitted that the only action which was taken by the plaintiffs was to apply to the Registrar of Copyright for cancellation of the registration. The plaintiffs did not, it was argued, take any action in Court for injecting the defendants from using the mark and nor did the plaintiffs, it is submitted, send any notice to who defendants asking them to refrain from using the mark It was contended that by the plaintiffs limiting bier action to filing an application for cancellation of the copyright led the defendants to believe that the plaintiffs were not objecting to the defendants' use of the mark and this amounts to acquiescence on the part of the plaintiffs.

(38) There is no force in the aforesaid contention of the learned counsel for the defendants. As has already been noted, acquiescence means something more than mere silence on the part of the plaintiffs. Acquiescence means encouragement,on the part of the plaintiff to the defendant. There should be a mistaken belief by the defendant that there is no objection to the plaintiff using its mark. In the present case the plaintiffs have taken action by applying to the Registrar of Copyright for cancellation of the registration which had been granted to the defendant. In the application for cancellation it has been specifically stated by the plaintiffs that the use of the infringing label has adversely affected the business of the plaintiffs. It is true that no specific notice was sent to the defendant asking the defendant not to use the mark and it is further correct that no suit for injunction was immediately filed. Such non-action may disentitle the plaintiff for the award of damages or rendition of accounts, but such inaction does not show any consent or acquiescence on the part of the plaintiff to the defendant's using the said mark. No overt act has been done by the plaintiffs which could, in any manner, amount to encouraging the defendant to continue to use the infringing mark.

(39) It had been submitted that there was an inordinate delay on the part of. the plaintiffs in filing the present suit. I have already held that inordinate delay would not defeat an action for the grant of a temporary injunction especially where the use by the defendant of the mark was fraudulent. An any case, in my opinion, the delay in the present case cannot be regarded as inordinate. Assuming for the sake of argument that, as contended by the defendants, the plaintiffs came to know about the user by the defendants of the infringing mark in March, 1982, it is not as if the plaintiffs slept over their rights for a number of years. It is to be seen that the plaintiffs' principal place of business is 'in Bombay while the defendant is a small businessman carrying on its business in Sadar Bazar, Delhi. The plaintiffs, in 1985, did file an application for cancellation of the registration of copyright of the defendant. This amounted to first step being taken by it. The plaintiffs waited and within 3 years thereafter filed the present suit. The defendant must have known that it was adopting a mark which belongs to some one else. Any infringer who uses or adopts some one else's mark must be aware of the consequences which may follow. The defendants ran the risk in using a mark which belonged to some one else. It continued. its business un-interruptedly for a number of years before any action was taken by the plaintiffs against it. Any growth after notice is at the risk and peril of the defendant. The defendant certainly had notice of application of the plaintiff having been filed against it in the year 1985 for cancellation of registration of the copyright. The defendant should have been warned, at thatstage,thatTHE plaintiffisnotlikelyto accept the user of its mark by the defendant If the defendant continued to do business by using the impugned mark. it did so at its own peril. The continued user cannot be set up as a defense under these circumstances.

(40) As has already been noted, it is not in dispute that the mark which is used by the defendants is similar, if not identical, to that of the registered mark of the plaintiffs. There is, therefore, a clear bleach of (he plaintiffs' rights under Section 28 of the Trade Marks Act. The plaintiffs are not guilty of inordinate delay or acquiescence and are entitled to the interim relief of an injunction.

(41) For the aforesaid reasons, I restrain the defendants by an interim injunction from using the offending mark 'NATARAJ' and the device of Nataraj or any similar mark or device which is an infringement on the plaintiff's registered trademark No?, 2t0466 and, 283730 in respect of stationery pins and other stationery items till the final decision of the present suit.

(42) I A. stands disposed of. Parties will bear their own costs.