JUDGMENT Mookerjee, J. The appellant company as plaintiff has instituted Title Suit No. 54 of 1979 against the respondent in the court of the District Judge, Alipor., inter-alia, for permanent injunction to restrain the defendant-respondent from using the trade mark, KOLIDRYL or any other visual or phonetic equivalent of the said mark and for restraining the defendant from using any trade mark in relation to its goods ending with the suffix DRYL or any other deceptively or confusingly similar suffix. The appellant in the said suit also prayed for a decree for damages against the defendant. The learned additional District Judge, 10th Court, Alipore has dismissed the plaintiff-appellant's, application for temporary injunction for restraining the defendant-respondent from using the said trade mark, KOLIDRYL, till the disposal of the said suit. The plaintiff, being aggrieved thereby, has preferred this appeal and has filed an application for interim orders till the disposal of the same. By consent of parties, we have analogously heard the said appeal and the application. 2. The appellant company which has been incorporated in the United States of America since 4th July, 1963 is the registered proprietor of the mark DRYL for pharmaceutical, medicinal and veterinary preparations. The appellant it also the registered proprietor of the marks BENADRYL, CALADRYL, AMBODRYL, ERGODRYL, BODRYL and CAMBODRYL for pharmaceutical and medicinal preparations. According to the appellant, in November, 1976 it had come to know that the respondent firm had been manufacturing and selling an expectorant under the name, KOLIDRYL and inspite of repeated objections made on behalf of the appellant, the respondent had continued to use the said mark. On January, 1977 the respondent had made an application to the Registrar under Section 18 of the Trade and Merchandise Marks Act, 1958 for registration of the mark, KOLIDRYL. The Registrar having accepted the said application on August 1, 1978 caused the said application to be advertised. On August 28, 1978 the present appellant had filed an opposition to the respondent's application for registrations of the mark, KOLIDRYL. The said proceeding is still pending. 3.
The Registrar having accepted the said application on August 1, 1978 caused the said application to be advertised. On August 28, 1978 the present appellant had filed an opposition to the respondent's application for registrations of the mark, KOLIDRYL. The said proceeding is still pending. 3. There is some substance in the submission made on behalf of the appellant that for deciding whether or not the plaintiff-appellant has a prima facie case for temporary injunction, the learned Additional District Judge has mainly considered whether there was any reasonable possibility of a confusion between the mark, CALADRYL which is a lotion manufactured by the plaintiff for external use and the mark KOLIDRYL, which is an expectorant manufactured and sold by the defendant. According to the court below, only phonetic resemblance was not a sufficient ground for granting temporary injunction in the plaintiff's favour. The court below has held that the drug manufactured by the defendant comes within the Schedule 'L' of the Drug Rules and could be sold only by the registered dealers on prescription of registered medical practitioners. Further, according to the court below, prima facie, the word DRYL is being used as a suffix of a large number of products manufactured by different companies. The defendant had been marketing its products since 1971 and the balance of convenience was not in favour or granting temporary injunction against the defendant. The court below, however, found that on the part of the plaintiff, there was no acquiescence. 4. Mr. Lal, learned advocate for the appellant, has submitted that the court below did not properly consider that his client was not only the registered proprietor of the mark, DRYL but also was the proprietor of a series of marks ending with the suffix DRYL. In their application for temporary injunction the plaintiff had claimed that some of their products, particularly, BENADRYL which is an expectorant and CALADRYL, which is a cream for external use have large volumes of sale and that the appellants has bean spending large sums as advertisement and sales promotion expenditure. It has not been, however, disclosed whether the said figures for advertisement and sales promotion expenditure were in respect of the plaintiff-appellant's products ending with the suffix DRYL or the same represented by the total advertisement and sales promotion expenditure of the plaintiff-appellant company, which presumably manufacture a large number of drugs and pharmaceutical preparations. 5.
It has not been, however, disclosed whether the said figures for advertisement and sales promotion expenditure were in respect of the plaintiff-appellant's products ending with the suffix DRYL or the same represented by the total advertisement and sales promotion expenditure of the plaintiff-appellant company, which presumably manufacture a large number of drugs and pharmaceutical preparations. 5. According to Mr. Lal, the plaintiff-appellant had acquired reputation as a user of the said marks and the buying public associated the medicinal products with the suffix DRYL. Accordingly, in case the defendant be allowed to manufacture and sell its products KOLIDRYL, in view of the similarity of the suffix, confusion or deception may arise that the mark KOLIDRYL suggested that it is the product of the plaintiff company. 6. As the registered proprietor of the marks DRYL and the series of the other marks with the suffix DRYL, the plaintiff under section 28 of the Trade and Merchandise Marks Act, 1958 prima facie has the exclusive right to their use and would be entitled to obtain relief in respect of their infringement in the manner produced by law. According to Section 29(1) of the Act, infringement of a registered trade mark may consist of using a mark which is either identical with or deceptively similar to the said registered trade mark in relation to any of the goods in respect of which the trade mark in registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. The defendant in an action for infringement for trade mark may succeed by establishing that the use of the mark which the plaintiff complains is not likely to deceive or cause confusion or to be taken as indicating connection in the course of trade between the goods in respect of which the trade mark in registered and some person having the right either as a registered proprietor or as a registered user to the use of the said trade mark. 7. The defendant’s mark KOLIDRYL is not identical with any of the registered marks of the plaintiff. Therefore, the question for determination in the suit would be whether the defendants said mark is deceptively similar to any of the registered trade marks of the plaintiff. Mr.
7. The defendant’s mark KOLIDRYL is not identical with any of the registered marks of the plaintiff. Therefore, the question for determination in the suit would be whether the defendants said mark is deceptively similar to any of the registered trade marks of the plaintiff. Mr. Lal has pointed out that the expression “deceptively similar” in section 2(1)(d) of the Act means a mark which so nearly resembles that no other mark as to be likely to deceive or cause confusion. 8. It is settled law that the question whether a mark nearly resembles another mark should be decided by considering the essential features of the two marks in question (vide the observations of the Supreme Court in (1) Kaviraj Pandit Durga Dutt Sharma v. Nayaraina Pharmaceutical Laboratories, AIR 1965 SC 980 , para 28). It is also to be noted that whether similarity in the two marks likely to give rise to a confusion is a question of first impression. The court has to approach the question of similarly between the two marks from the point of view of a man of average intelligence and of imperfect recollection-whether the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them (vide the observations of the Supreme Court in (2) Corn Products Refining Company v. Shangrila Food Products Ltd., AIR 1960 SC 142 ). The Court below has relied upon the decision of the Supreme Court in (3) E. Hoffimann La Roche & Co. Ltd. v. Geoffrey Manners & Co. Ltd., AIR 1970 SC 2062 . The learned Judges in E. Hoffimann La Roche's case (supra), reiterated that the marks must be compared as a whole and it was not to take portion of the work and say because that portion of the word differs from the corresponding portion of the word in the other case, there is no sufficient similarity to cause confusion. The true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark.
The true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark. The Supreme Court referred to the statement of the respondent made in the High Court that it was willing that the court should direct in exercise of its powers under section 56(2) of the Trade and Merchandise Marks Act, 1958 that the Registrar should limit the respondent’s trade mark DROPOVIT to medicinal and pharmaceutical preparations and the substances containing principally vitamins. The court had observed that the question of deceptive similarity must, therefore, be decided on the basis of the class of goods to which the trade marks apply subject to the limitation agreed to by the respondent. "From the nature of the goods it is likely that most of the customers would obtain a prescription from a doctor and show it to the chemist before purchase. In such a case, except in the event the hand-writing of the doctor being very bad or illegible, the chances of confusion is remote." The Supreme Court also referred to the evidence which showed that there were as many as 57 trade marks in the register with the suffix VIT and, therefore, average customers would know that in respect of vitamin preparations the word VIT occurs in large number of trade marks and he would naturally be on his guard and take special care against making a mistake. The provisions of the Drug Rules, 1945 requiring licence for stoking vitamin preparations and selling in retail were also referred by the Supreme Court. 9. Thus, according to the decision of the Supreme Court in E. Hoffimann La Roche's case (supra) in order to determine whether or not there was any possibility of confusion between the two marks, the court may legitimately consider what particular class of buyers and sellers deal with the products bearing the said marks and also restrictions, if any, imposed by law upon the sales and purchases of the products bearing the said marks. We have already pointed out that according to the court below the defendant’s product KOLIDRYL comes within Schedule L of the Drug Rules and could be sold by the registered dealers on prescription of registered medical practitioners. 10.
We have already pointed out that according to the court below the defendant’s product KOLIDRYL comes within Schedule L of the Drug Rules and could be sold by the registered dealers on prescription of registered medical practitioners. 10. In the instant case, we are required to, inter alia, consider whether the plaintiff-appellant has a prima facie case. In other words, whether the allegations made by the appellant raise triable issues. When parties have not yet adduced their respective evidence, we are not prepared to apply the rules of comparison and decide whether or not in fact, there is a deceptive resemblance between the plaintiff's aforesaid marks and the mark used by the defendant. The merits, if any of the defences raised by the defendant-respondent may be considered at the final hearing of the case and we do not propose to make any pronouncement upon them. Mr. Ghosh, learned advocate for the defendant-respondent, has submitted that the work DRYL used by his client was really an abbreviation of the English expression "DRYL". The registration of the plaintiff's trade mark was hit by notion 9(1)(d) of the Trade and Merchandise Marks Act, 1958 and was invalid. In our view, the above submission about the validity or otherwise of the registration of the plaintiff's trade mark DRYL is not relevant at the interlocutory stage. The plaintiff for more than 7 years has remained as the registered proprietor of the said mark DRYL and several other marks with the suffix DRYL. The defendant has not made any application as yet for rectification of the said register. The defendant’s application for registration of the mark KOLIDRYL is pending. 11. Mr. Ghosh, learned advocate for the respondent, also submitted that according to the English precedents, the first syllable of a word is more important and there is a "tendency of persons using English language to slur the termination of words". We may point out these decisions on the way of pronouncing the English word by English men may not be always of assistance in deciding the questions of phonetic similarity of marks of products sold in India. Secondly, even if the first syllable of a mark is more important, the suffix is not to be altogether ignored.
We may point out these decisions on the way of pronouncing the English word by English men may not be always of assistance in deciding the questions of phonetic similarity of marks of products sold in India. Secondly, even if the first syllable of a mark is more important, the suffix is not to be altogether ignored. The trade mark being a whole thing the common elements of the two marks ought to be looked into for deciding whether there is any possibility of deception or confusion. At this stage, we also need not consider the submission of Mr. Ghosh that the mark DRYL registered in the name of the plaintiff appellant is not in actual use because as the registered user of the mark, the appellant, is entitled to bring action in cases of infringement or passing over. 12. In the facts and circumstances of this case at this interlocutory stage and balance of convenience and inconvenience is very relevant. The relevancy of balance of convenience has been pointed out in paragraph 15-65, section 5, chapter XV of Kerly’s Law of Trade Mark and Trade Names (10th Edition). Accordingly to the said author, where the fact of infringement is doubtful of mis-representation amounting to a bar to the action or, some other defence is plausibly alleged upon the interlocutory motion the court, in granting or refusing the interim injunction is guided principally by the balance of convenience, that is, by the relative amounts of damages which seem likely to result if injunction is granted and the plaintiff ultimately fails. The plaintiff must in any event show that if the defendant is allowed to continue infringement until the trial, there is some reasonable apprehension that some irreparable damage will be caused to him, that is to say, he would not be fully compensated by an order of damage made after trial. The balance of convenience is not substantially affected by the offer of inadequate undertaking by the defendant. In the instance case, apart for alleging that their reputation was liable to be damaged in case the defendant continued to sell their product KOLIDRYL, the plaintiff appellant in their application for temporary injunction filed in the court below did not set out in detail the grounds of their apprehension that some irreparable damage would be caused to them which court not be compensated by an order for damages made after trial.
There is also no material on record to indicated the volume of sale per year of the defendant’s product KOLIDRYL. The plaintiff is addition to injunction has also prayed for a decree for damages against the defendant. In Kerly’s Law of Trade Marks and Trade Names (10 Edition), paragraph 15-67, section 5, chapter XV, it has been pointed out that the interim injunction being intended only to preserve the plaintiff’s rights from serious detriment until the hearing, is at any rate in cases which appear to be doubtful or honestly disputed limited as closely as possible to what is sufficient to attain that end. 13. In our view, in the facts of this case the interlocutory application for injunction by the plaintiff-appellant should be ordered to stand over pending the result of the application for registration made by the defendant. In this connection, we may refer to the following passage in 15-65, section 5, chapter XV of Kerly’s Law of Trade Marks and Trade Names (10th Edition):- "In a case were the defendant claimed a right to the mark in question and had applied to register it himself, an interlocutory motion for an injunction by the plaintiff was ordered to stand over pending the result of the application. Where there is a substantial case to be tried, the application for an interim injunction may be ordered to stand over to the hearing upon the defendant undertaking to keep an account of his sales under the mark objection to". 14. The plaintiff has prima facie, delayed the filing of the suit an appreciable time after they knew of the matter complained of and their application for temporary injunction filed in the court below does not contain any explanation for the said delay. Such delay may not be necessarily a ground for refusing relief prayed for in the plaint of the suit filed by the plaintiff. But the said question of delay is germane in considering the balance of convenience. In foot-note (48), paragraph 15-66 of Kerly’s Law of Trade Marks and Trade Names (10th Edition), a number of reported cases on the question of delay have been mentioned. The learned author has observed with reference to the decision in (4) Army and Nevy Co-operative Society Ltd. v. Army, Nevy and Civil Service Co-operative Society of South Africa Ltd., 19 RPC 574 and (5) Hayward Bros.
The learned author has observed with reference to the decision in (4) Army and Nevy Co-operative Society Ltd. v. Army, Nevy and Civil Service Co-operative Society of South Africa Ltd., 19 RPC 574 and (5) Hayward Bros. v. Peokall, 26 RPC 89, that cases as old as this should not be relied on as illustrating how courts would now regard a particular length of delay for the time needed to bring an action to trial was then much longer than is needed now. In any event, the amount of delay that is acceptable depends greatly on the other matters affecting the balance of convenience in a particular case. More modern instances have been mentioned. In (6) Taverner Rutledge Ltd. v. Specters Ltd. (1957) RPC 498, there was 7 weeks gap between defendant's refusal to give undertaking and launching of motion the plaintiff said they had to get specimen of the alleged infringement from America, where it was on sale; but defendants were English, and plaintiff’s never asked them for a specimen, interlocutory injunction refused. Cases of (7) Lombard Banking Ltd v. D.H. Lombard Ltd., 69 RPC 60 and (8) Bravington Ltd. v. Barrington Tennant, (1957) RPC 183 have been mentioned. According to the learned author, three months’ delay seem to be about the limit, in the absence of the explanation: see (9) "Kenitex" cases (1965) FSR 109 at page 110 (CA). But where the prima facie right is exceptionally clear, a longer delay may be over-looked provided that the defendant knew of the plaintiff's complaint and therefore went ahead with his eyes open, see (10) Cavendish Housh Ltd. v. Cavendish Woodhouse Ltd., (1970) RPC 234 (eight month’s delay, five of which could not be explained, overlooked when considering the balance of convenience. 15. The respondents have placed before us a Division Bench decision of Delhi High Court in (11) Nanak Chand & Ors. v. Kohinoor Chemical Co. Ltd. FAO (O.S) No. 25 of 1969 : ILR 1972 Delhi 344, decided on 9th November, 1970. The application of the appellant of the said case for registration of their mark Tibet Snow had been dismissed. Their application by the Joint Registrar of Trade Marks and their appeal against the said order was still pending before the High Court at Bombay.
The application of the appellant of the said case for registration of their mark Tibet Snow had been dismissed. Their application by the Joint Registrar of Trade Marks and their appeal against the said order was still pending before the High Court at Bombay. In the context of these facts the learned Judges observed that the very fact that the appellants had been defeated in atleast two grounds did give rise to the belief the respondent company has a prima facie case that use of the mark by the appellant constituted infringement of the respondent’s trade mark. As regards delay, the learned Judges had correctly observed that the same was linked with the question of balance of convenience and was one of the factors to be kept in view while deciding an application for grant of temporary injunctions (vide (12) M/s. National Carbon Co. Ltd. v. Raj Kumar and another, AIR 1954 Allahabad 218). On facts the court held that the balance of convenience was in favour of the plaintiff and there was no danger of the business of the appellants closing down as a result of the grant of injunction. 16. The present case is distinguishable. Not only the suit brought by the plaintiff is pending but also the defendant-respondent’s application for registration of the mark KOLIDRYL and the opposition filed by the appellant are yet to be decided in accordance with law. The appellant’s application for temporary injunction has been filed after a considerable delay. According to the defendant-respondent since the year 1971 they had been manufacturing and selling their products under the mark KOLIDRYL. Even if we leave out of our consideration the said claim of the defendant-respondent, according to the appellant themselves, their cause of action for filing the present suit arose on 30th November, 1976 at 132/1, Belaghata Road, Calcutta (vide paragraph 21 of the plaint). The plaintiff-appellant instituted the suit in question on or about 22nd August, 1979, i.e., nearly three years after the date on which their cause of action had arisen. The plaintiff-appellant has no doubt referred to the correspondences between the respective attorneys/agents of the two partial. The plaintiff-appellant has annexed to their application for temporary injunction filed in the court below some of these letters. But the same do not furnish any plausible explanation for the said delay. 17.
The plaintiff-appellant has no doubt referred to the correspondences between the respective attorneys/agents of the two partial. The plaintiff-appellant has annexed to their application for temporary injunction filed in the court below some of these letters. But the same do not furnish any plausible explanation for the said delay. 17. M/s. Ramfry & Son, as attorney of the appellant, by a letter dated 30th November, 1976 had called upon the defendant-respondent to cease and desist from using the trade mark KOLIDRYL. On 30th December, 1976 the Trade Mark Registration Bureau on behalf of the defendant-respondent sent a reply to the attorney of the plaintiff-appellant denying the allegations made. On 13th December, 1976 the attorneys for the appellant wrote a further letter, inter alia, requesting the said Trade Mark Registration Bureau to comply with the requisitions made, so that the dispute might be settled amicably and warning them that falling the same the appellant will deem themselves at liberty to seek their remedies in a court of law. There was further exchange of letters. It is not necessary to refer to each of these letters. We may, however, mention that the appellants attorney by their letter dated 9th June, 1977 had referred to the provisions of section 54 of the Trade and Merchandise Marks Act, 1958 and offered to give another opportunity to the defendant-respondents to settle their matter amicably by changing their trade mark KOLIDRYL. On 15th October, 1977 the appellant's attorney wrote a letter to the respondents, inter alia, stating that if no reply was received within a fortnight the plaintiff will have little choice to assume that the respondents had no intention of giving up their objectionable activities. 18. But the plaintiff-appellant did not immediately file any legal proceeding for restraining the defendant-respondent from allegedly infringing their trade mark. On 20th January, 1977 the defendant respondent filed an application for registration of its trade mark KOLIDRYL in Clause-5 in respect of medicinal preparation being an expectorant. The said application was advertised in Journal No. 700 dated 1st August 1978. The appellant has opposed the said registration and as already stated, the said proceeding is still pending. 19. In the above view, there is no explanation for the delay for the period 1st of November, 1977 (vide the letter dated 15th October, 1977 of the plaintiff-appellant's attorney) and 28th of August, 1979.
The appellant has opposed the said registration and as already stated, the said proceeding is still pending. 19. In the above view, there is no explanation for the delay for the period 1st of November, 1977 (vide the letter dated 15th October, 1977 of the plaintiff-appellant's attorney) and 28th of August, 1979. The respondent had repudiated the plaintiff's claim of infringement by not complying with the request made by the plaintiff-appellant neither in its plaint not in its application for temporary injunction have given any explanation for the above delay. 20. In granting or refusing interim injunction in this case, the court should be guided principally by the balance of convenience, i.e., by the relative amounts of damages which seem likely to result if the injunction is granted and the plaintiff ultimately fails or if it is refused and the plaintiff ultimately succeeds. There is not enough material on record at this stage to indicate that if the defendant is allowed to continue the use of the mark KOLIDRYL, some irreparable damage would be caused to the plaintiff which could not be compensated by an order for damages made after trial (vide Kerly's Law of Trade Marks and Trade Names, Chapter XV Section 15-65). In the facts of this case we propose to adopt the procedure indicated in the concluding portion of paragraph 15-65 of Kerly's above book. The learned author has referred to the decision in (13) Edwards v. Elkan, (1887) 5 RPC 70 where the defendant claimed a right to the mark in question and had applied to register it himself an interlocutory motion for injunction by the plaintiff was ordered to stand over pending the result of the application. Mr. Lal has drawn our attention to sub-section (5) of section 111 of the Trade and Merchandise Marks Act, 1958 which provide that stay of a suit for infringement of a trade mark under section 111 shall not preclude the court making any interlocutory order during the period of the stay of the suit. In the instant case, no order for stay has been as yet made. Secondly, sub-section (5) of section 111 only recognises the power of the court to make interlocutory order and passing such interlocutory orders, the court would be clearly guided by well recognised principles, namely, existence or otherwise of prima facie case, the balance of convenience, irreparable injury etc.
In the instant case, no order for stay has been as yet made. Secondly, sub-section (5) of section 111 only recognises the power of the court to make interlocutory order and passing such interlocutory orders, the court would be clearly guided by well recognised principles, namely, existence or otherwise of prima facie case, the balance of convenience, irreparable injury etc. The court below has exercised its discretion by refusing, the plaintiff's prayer for temporary injunction. It will be in the interest of both parties to expeditiously dispose of the suit. We make it clear that the observation’s made by the trial court and this court in the matter of interlocutory injunction, neither bind nor prejudice the parties at the final hearing of the case. 21. Mr. Lal has placed before us the unreported decision of Shiveshwar Prasad Sinha, J. of the Patna High Court in (14) Parke, Devis & Co. v. D.R.T, Pharmaceuticals, Appeal from Original Order No. 10 of 1979, disposed of on 4th July, 1979. The learned Single Judge allowed the appeal preferred by the present appellant against an order of the learned Additional District Judge, Muzaffarpur refusing to grant a temporary injunction against the defendant from using the mark DRYL in their pharmaceutical works until the disposal of the title suit brought by the plaintiff or the decision of the Registrar of Trade Marks, Bombay on the defendant's petition under section 46(1)(b) of the Trade and Merchandise Marks Act, 1958 whichever was earlier. The learned Judge after referring to some of the aspects of to matter had observed that the same required consideration and there was a case for trial, that is, prima facie case. At the same time, the learned Judge had pointed out that it was not proper for him to go into the merits of the case because the suit was still pending and the same had been stayed in terms of section 48(1)(b) of the said Act, because the defendant had filed a petition before the Registrar of Trade Marks, Bombay stating that the plaintiff had not been using the trade mark DRYL since a continuous period of eight years.
The learned Judge noticed the submission made on behalf of the respondent that the learned Additional District Judge had refused injunction because the defendant's product was a drug which came under Schedule L and could be sold only on prescription of a registered medical practitioner and there was no scope of confusion or deception between medicinal preparations manufactured by the petitioner and those by the defendant. Presumably, this submission on behalf of the respondent was made on the basis of the decision of the Supreme Court in E. Hoffimann-La- Roche's case (supra). But it does not appear that the learned Judge had discussed the said point. The question of delay on the part of the plaintiff in applying for temporary injunction was also neither raised nor decided by the above case before the Patna High Court. In the instant case we have indicated that by reason of unexplained and inordinate delay, the plaintiff in not entitled to obtain any interlocutory order of injunction although the same would in no way prejudice the plaintiff's claim to obtain relief’s prayed for in the suit provided it is found that the plaintiff is otherwise entitled to the same. 22. Therefore, we make it clear that in case of any subsequent change of circumstances, it would be open to either of the parties to apply for interlocutory orders before the trial court. 23. We, accordingly, dismiss this appeal without any order as to costs. We direct the trial court to dispose of the suit in question within three months from this day in accordance with law. Let a copy of this order be communicated immediately to the court below. Decree need not be drawn up. 24. We reject the oral prayer made for grant of certificate under Article 133 of the Constitution of India. By our judgment in the appeal we affirm the decision of the trial court in an interlocutory matter. Secondly, we have expressed the view that the appellant in making the application for temporary injunction was guilty or inordinate and unexplained delay. In the above view, we hold that this case does not involve any substantial question of law of public importance which is fit to be considered by the Supreme Court. There will be no order as to costs. Maitra, J. : I agree.