JUDGMENT N.D. Ojha, J. - This is a plaintiff's appeal against an order passed by the Additional District Judge, Bareilly, dismissing an application for temporary injunction. The appellant filed a suit for: (1) Prohibitory injunction restraining the defendants) their servants agents, distributors, salesman, broker and all other persons on their behalf from manufacturing, advertising, selling or offering for sale and/or infringing or attempting to infringe and/or passing off or attempting to pass off match boxes not of the plaintiff's manufacture as those of the plaintiff's manufacture by the use of the offending infringing label `Coley' or any other lebal of a similar design and appearance as that of the plaintiff's `Tekka' label. (ii) A decree for mandatory injunction directing the defendants to deliver to the plaintiffs the entire stock of the offending label, loose labels, dies, blocks, wrappers, printed matters etc. under their control or under the control of their manager, agents, distributors, salesmen, servants, brokers or other persons on their behalf. (iii) Accounts; and (iv) damages. 2. The case of the appellant as set out in the plaint in brief was that it dealt with the manufacture and sale of safety match boxes for the last 45 years under a registered trade mark and was proprietor of 'Tekka' label, that the said label had a distinctive get-up design, lay out and colour scheme, that it had built up value-able good will and reputation and had extensive business throughout India. The appellant's case further was that its label was known to the public and trade commonly as `Tekka', `EKKA', `Tash Marka' etc., that the defendants were either manufacturing and offering for sale or selling matches with 'Coley' label to different parties in India, that the `Coley' label was similar in design and get-up as the `Tekka' label of the appellant and that the defendants were not only infringing his trade mark but were also passing off their goods as though they were the goods manufactured by the appellant, and thereby causing great loss to it. 3. The appellant also filed an application for temporary injunction in terms similar to the relief (i) referred to above and an ex parte temporary injunction was granted on April 26, 1972. On receipt of the summons issued to the defendants' two sets of objections were filed one by defendants 6 and 7 and the other by defendant No. 12. 3. The appellant also filed an application for temporary injunction in terms similar to the relief (i) referred to above and an ex parte temporary injunction was granted on April 26, 1972. On receipt of the summons issued to the defendants' two sets of objections were filed one by defendants 6 and 7 and the other by defendant No. 12. The objection of defendants 6 and 7 inter alia was that these defendants adopted `Coley' trade mark and impugned label with its get-up design and lay out in or about April 1964 to the knowledge of the plaintiff who filed an objection against the defendants' trade mark being registered but the said objection was dismissed by the Assistant Registrar on December 29, 1970 and the defendants' application for registration was allowed. Their case further was that in view of the fact that they were carrying on trade under a registered trade mark and that since their label was not similar to that of the plaintiff they were neither guilty of infringement of plaintiff's trade mark nor of passing off. The application was also opposed on the ground that they had made huge investment for carrying on their trade and the balance of convenience lay in favour of refusing the injunction prayed for and that if an injunction was issued they would be put to irreparable loss whereas the plaintiff would be put to no such loss if the injunction was refused inasmuch as they had already sued for accounting and damages and would get a decree for the same if they succeed in proving their case. 4. After hearing the parties the court below by the order appealed against dismissed the plaintiff's application for injunction and vacated the ex parte order granted on April 26, 1972, hence this appeal. 5. It was urged by the learned counsel for the appellant that not only a case of infringement of the appellant's trade mark was made out but it had also been established that the goods manufactured by the defendants were deceptively similar to that of the plaintiff and the defendants were clearly liable for passing off. 5. It was urged by the learned counsel for the appellant that not only a case of infringement of the appellant's trade mark was made out but it had also been established that the goods manufactured by the defendants were deceptively similar to that of the plaintiff and the defendants were clearly liable for passing off. From the material placed on record it appears that an application was made on behalf of Bharat Match Stores respondent No. 6 by Man Mohan, Manohar Lal and Kimti Lal, respondents 7, 8, 9 to the Assistant Registrar of trade Mark on April 10, 1964 for registration in Part A of the register of label in respect of safety matches. A design of the label was given in , which the word `Coley' appeared on the top of the label and the words `matches' and `safety' on left and right hand sides respectively. Four circles appeared within the inner retangle and in the lower left hand corner appeared the letters 'B. M. S'. It also contains some non-distinctive and descriptive matter. The application was advertised and an objection was filed by the appellant. This objection was almost on identical grounds as are the basis of the suit and was ultimately rejected by the Assistant Registrar by his order dated December 20, 1970. Thereafter a registration certificate was issued in the names of said Man Mohan etc. This certificate shows the number of the trade mark as 221707 and has affixed to it a representation of the label. The registration of the trade mark is "without limitation of colour". It is to be noticed that the registration of the appellant's trade mark is also without limitation of colour. The Assistant Registrar in his order dated Dec. 29, 1970 dismissing the appellant's objection held that the competing marks were not similar to each other, either visually or phonetically. In this connection he held that the two marks contained so many divergent features that visually they appeared to be totally dissimilar and as regards phonetic aspect one was likely to be known as `Tekka' brand while the other as `Coley' brand. 6. Learned counsel for the appellant urged that as would appear from the order of the Assistant Registrar the label which the defendant Nos. 6. Learned counsel for the appellant urged that as would appear from the order of the Assistant Registrar the label which the defendant Nos. 6 to 9 had attached with the application for registration was in black and white; whereas that of the appellant's incorporated yellow, red and black colours, and the finding of the Assistant Registrar was really based on this material difference between the two colour schemes. Subsequently defendants 6 to 9, however, adopted the same colour scheme as that of the appellant. It is true that the Assistant Registrar has noticed the aforesaid difference but he has simultaneously recorded a finding that the affidavits filed before him showed that the colour scheme incorporating red, black and yellow colours was common to the trade and was widely used by other traders besides the defendants. As already observed above the trade marks both of the appellant and respondents 6 to 9 have been registered without limitation of colours. Under Section 23 of the Trade and Merchandise Marks Act, 1958, here in after referred to as the Act, the trade mark when registered shall be registered as of the date of the making of the said application and that date shall, subject to the provisions of Section 131, be deemed to be the date of registration. Under Section 32 of the Act subject to the provisions of Secs. 36 and 46 in all legal proceedings relating to a trade mark registered in Part A of the register the original registration of the trade is after the expiration of seven years from the date of such registration to be taken to be valid in all respects unless certain facts mentioned in the said section were proved. Sec. 28 of the Act deals with the rights conferred by registration. Subclause (1) of this section gives to the registered proprietor of the trade mark the exclutive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act. Sub-sec. Subclause (1) of this section gives to the registered proprietor of the trade mark the exclutive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act. Sub-sec. (3) of Section 28 provides that where two or more persons are registered as proprietors of trade mark which are identical with or nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any of those persons merely by registration of trade mark but each of those persons has otherwise the same rights as against other persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor. Sec. 30 (1) (d) of the Act lays down that not withstanding anything contained in this Act the use of a registered trade marks, being one of two or more trade marks registered under this Act which are identical or nearly resemble each other, in exercise of the right to the use of that trade mark given by registration under this Act does not constitute an infringement of the right to the use of a registered trade mark. Under Section 31, the original registration of the trade mark and of all subsequent assignments and transmissions of the trade mark shall be prima facie evidence of the validity thereof in all legal proceedings relating to trade mark registered under the Act. 7. In view of the aforesaid statutory provisions the date of registration of defendants' trade mark would be April 10, 1964. Seven years had expired when the suit was filed on April 26, 1972 and I am of the opinion that even if for the sake of argument it may be accepted that the trade mark of defendants is identical or nearly resembles with that of the appellant's trade mark the appellant cannot prima facie obtain an injunction. The appellant under these circumstances had to take recourse to the remedy contemplated by Secs. 107 and 108 of the Act. The appellant under these circumstances had to take recourse to the remedy contemplated by Secs. 107 and 108 of the Act. Against the order of the Assistant Registrar dated December 29, 1970 which was passed under Section 23 on an application made by defendants 6 to 9 under Section 18 after hearing the appellant's objection under Section 21 of the Act an appeal lay under sub-Sec. (2) of Section 109 of the Act. Nothing on the record was brought to my notice to indicate that the appellant has availed of any of the remedies provided for under Secs. 107, 108 and 109 of the Act. It is true that the rule as to conclusiveness of the validity of registration embodied under Section 32 of the Act is subject to the exceptions contained in its clauses (a), (b) and (c) as laid down in National Bell Co. v. Metal Goods Manufacturing Co., AIR 1971 S.C. 898 . But the various questions of fact on the basis of which the appellant has filed the suit, which may bring its cause under any of the exceptions contained in clauses (a), (b) or (c) aforesaid will be decided only after evidence has been adduced by the parties and at this stage it is premature to judge their merits one way or the other. 8. Consequently the appellant cannot be said to have made out a prima facie case for issue of a temporary injunction on the ground of infringement of trade mark, and the prayer for temporary injunction based on infringement of trade mark is apparently not maintainable. In support of his contention that the defendants were liable for passing off learned counsel relied upon Section 27 (2) of the Act which provides that nothing in this shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. He further relied upon the observations of the Supreme Court in the following cases laying down the tests for determining similarity of marks; Corn Products v. Shangrila Food Products, AIR 1960 S.C 142 , Amritdhara Pharmacy v. Satya Deo, AIR 1963 S.C. 449 , Durga Dutt Sharma v. N. P. Laboratories, AIR 1965 S.C. 980 , Rustom and Honby Ltd. v. Z. Engineering Co., AIR 1970 S.C. 1649 and Parley Products v. J. P. and Co. Mysore, AIR 1972 S.C. 1359 . 9. In view of the weighty observations made in the aforesaid cases the tests for determining the similarity of trade marks stand undoubtedly well established. But whether one trade mark is deceptively similar to the other or not will have to be determined in each case on its own facts and in this connection the following observations made in the case of Corn Products(supra) have to be kept in mind; "It is well known that the question whether the two marks are likely to give rise to confustion or not is a question of first inpression. It is for the court to decide that question." It has further to be borne in mind that the case has come to this Court shortly after the institution of the suit against an order in an interlocutory matter. The parties have not yet gone to trial and adduced evidence on the merits of their respective cases. On the basis of the affidavits filed and a comparison of the two marks the court below to the conclusion : '"It is obvious that there cannot be any phonetic resemblance between Coley and Tekka. A casual comparision of the two labels to my mind do not produce even a visual and pictorial similarity. The prominent feature in the centre and corners of Tekka labels are four ace marks, whereas in the Coley labels those marks are of circles. Even though the colours used are the same yet the difference between ace and circles is apparent even to the eye of an unwary customer." "I, therefore, prima facie hold that the defendants' trade mark `Coley' cannot be said to be identical with or deceptively to the plaintiff's trade mark Tekka'. Thus the plaintiff has failed to prove a prima facie case in its favour." Apart from what has been noticed by the court below I find on a perusal of the two marks that the price printed on the appellant's mark is 8 paise whereas the price printed on the defendants' mark is 10 Paise so that it is higher than that of the appellant and is thus likely to act as a hinderance in passing off. 10. On the basis of the material placed before me I find myself unable to take a view contrary to that taken by the court below. 11. 10. On the basis of the material placed before me I find myself unable to take a view contrary to that taken by the court below. 11. Apart from establishing a prima facie case an applicant claiming temporary injunction has to prove that the balance of convenience lies in favour of granting an injunction and that if an injunction is not issued he will be put to irreparable loss. On a perusal of the objection filed by the defendants 6 and 7 in the court below (paper No. 210) supported with an affidavit (paper No. 22C) it appears that the defendants have paid a sum of Rs. 9,50,000/- as excise duty to the Central Excise Department, had till May 4, 1972 sold safety matches under the registered trade mark `Coley' in the market worth Rs. 16,00,000/- had incurred an amount of Rs. 7,000/- on advertisement, goods under the trade mark `Coley' worth Rs. 2 50,000/- had been unloaded at the New Delhi Railway Goods shed and or were in transit and raw material worth Rs. 5,00,000/- had been purchased. These allegations are contained in paragraphs 11, 12, 13 (o) and 13 (p) of paper No. 21C. Its reply by the appellant is contained in paper No. 680. The allegation about unloading of goods valued at Rs. 2,50,000/-, contained in paragraph 13 (o) stands admitted and apart from making a general denial of the allegations made in paragraphs 11, 12 and 13 (p) the appellant has not been able to furnish any material to indicate that the averments made therein are incorrect. The appellant as already pointed out above has claimed the reliefs of accounting and damages in the suit and will not be put any irreparable loss if temporary injunction is refused. If temporary injunction is issued as prayed for the injury to the defendants would be more than the injury to the plaintiff if no such injunction is issued. The balance of convenience also is, therefore, in favour of not issuing a temporary injunction and the court below in so holding has not committed any error which may call for interference by this Court. Under almost similar circumstances it was held in Dorothy Perkins Ltd. v. Polly Perkins of Piccadilly Ltd., 1972 Report of Patent, Design and Trade Mark Case 153. Under almost similar circumstances it was held in Dorothy Perkins Ltd. v. Polly Perkins of Piccadilly Ltd., 1972 Report of Patent, Design and Trade Mark Case 153. "Balancing one thing with another and without, of course, expressing any view whatever as to what may emerge at the trial when witnesses will be cross-examined and there may be evidence of what the views of the purchasing public may be, I do not think on the whole that this is a case for interlocutory injunction. I think it is rather a case of directions for a speedy trial and I propose to give those directions now." 12. In view of the foregoing discussions find no substance in this appeal and it is accordingly dismissed with costs, subject of course with a direction that the court below will decide the suit expeditiously.