Judgment :- Padmini Jesudurai, J. These original side Appeals by the plaintiffs in passing off actions, in respect of certain pharmaceutical and veterinary products, are directed against the order of the learned Judge dismissing their applications for interim injunctions and vacating the injunction earlier granted by him restraining the defendants from manufacturing those products using the brand names. 2. Fleming (India), a registered firm, engaged in manufacture and sale of pharmaceutical products, having its place of business at Bangalore, filed C.S. Nos. 1143 to 1147 of 1988 and 1148 of 1988 on the Original Side of this court against M/s. Ambalal Sarabhai Enterprises Limited, also engaged in the same trade, on a larger scale, in C.S. No. 1143 of 1988 impleading the agent as the second defendant for permanent injunction restraining it from manufacturing, selling, certain pharmaceutical products using the brand names and passing them off as and for the goods of the plaintiffs, while Antox India (P) Ltd., a sister concern of Fleming, filed C.S. No. 1147 of 1988 against the same defendant and C.S. No. 1220 of 1988 against Wander Bombay and its agent, for the same relief in respect of certain other pharmaceutical products. 3. The plaint avernments are as follows. The plaintiffs Fleming (India) and Antox had been manufacturing the pharmaceutical products - Curaminth, Dysonac, Hexathane, Synamox, Ganrilon, Depsodiaz, Bronkine and Cal-De-Ce long prior to the filing of the suits, under valid licences issued by the Drug Controller, Karnataka, under the Drugs and Cosmetics Act, 1940. All the licences were issued in the brand names, renewed from time to time and were subsisting on the date of the suits. In respect of Ganrilon, Synamox, Depsodiaz and Cal-De-Ce, agreements has been entered into between the plaintiff and the first defendant (hereinafter referred to as the defendants, in view of the defendants highly organised and extensive marketing infrastructure, covering the whole of India and abroad, the entire production was sold in bulk to the defendants. As a result of the use of the brand names/trade names for over several years, plaintiffs had become the owners of the respective trade names and had acquired good will in them. Suppressing the existence of the valid licences in favour of the plaintiffs in the brand names, the defendants had obtained licences in respect of Depsodiaz. As a result of the use of the brand names/trade names for over several years, plaintiffs had become the owners of the respective trade names and had acquired good will in them. Suppressing the existence of the valid licences in favour of the plaintiffs in the brand names, the defendants had obtained licences in respect of Depsodiaz. Synamox, Dysonac and Bronkine from the Drug Controller, Gujarat and in June 1988, the defendant declined to lift the goods manufactured by the plaintiffs and had either started or were planning to start manufacture of the same products with the same trade name through their agents. Defendant's goods were thus being passed off or were in immediate threat of being passed off as and for those of the plaintiff, which had necessitated the filing of the suits. 4. The defendants in their counter to the applications for interim injunction, contended that they were the owners of the various trade names, two of which had been registered and registration was pending on the date of the suits in respect of the others, that in pursuance of agreements or arrangements/understanding between the plaintiffs and the defendant, the plaintiffs had agreed to manufacture the products of the defendants, the latter supplying the technical know-how with instructions to affix the labels showing the trade mark as belonging to the defendants, that a consent/undertaking by the defendant permitting the plaintiff to use the defendants' trade names was given to enable the plaintiff to take out the necessary manufacturing licences, the manufacture by the plaintiffs was done under the control and supervision of the defendants, and the consent/undertaking now have been withdrawn, the plaintiffs could no longer use the trade names. The defendants were entitled to manufacture the products with trade names either by themselves or through their agents and had applied for obtaining manufacturing licences from the Drug Controller, Gujarat for four out of the eight products. The plaintiffs being neither the owner nor users of the trade marks, could not sustain any passing off action. 5. The defendants were entitled to manufacture the products with trade names either by themselves or through their agents and had applied for obtaining manufacturing licences from the Drug Controller, Gujarat for four out of the eight products. The plaintiffs being neither the owner nor users of the trade marks, could not sustain any passing off action. 5. On the learned Judge dismissing the applications for injunctions, holding that the two agreements on the basis of which parties had acted in respect of all the eight drugs, were mere manufacturing agreements and not user agreements and the consent/undertaking given by the defendants to the Drug Controller, Karnataka, would not amount to surrender of the defendant's right over their trade marks and they having been later withdrawn, there was no prima facie case for passing off to justify the grant of the interim relief. The learned Judge also held that the legality of the Drug Controller, Gujarat issuing a licence in favour of the defendant during the subsistence of similar licences issued in favour of the plaintiff's by the Drug Controller, Karnataka, could not be gone into in a passing off action. 6. Though it was made clear to the learned counsel for the respective parties, that in view of the nature of the proceedings, the court would refrain from going in depth into the different issues involved in the litigation or render any findings thereon, extensive submission on all possible matters touching the dispute were made by both the counsel by referring to various provisions of the Monopolies and Restrictive Trade Practices Act, 1969, the Industries Development and Regulation Act, 1951. The Drugs (Prices Control) Order, 1979 issued under the Essential Commodities Act, 1955, the Trade and Merchandise Marks Act, 1958. The Drugs and Cosmetics Act 1940 and the Patents Act, 1970. Hathi Commission Report, 1975 Report of the Lentin Commission, 1986, Government of India's Drug Policy and several text books on the law relating to trade marks. Despite all this, since the appeals arise out of applications for interim injunction, we are constrained to limit our consideration only to finding out whether the plaintiffs have made out a prima facie case for the reliefs sought and whether the balance of convenience would justify grant of the interim relief. 7. Despite all this, since the appeals arise out of applications for interim injunction, we are constrained to limit our consideration only to finding out whether the plaintiffs have made out a prima facie case for the reliefs sought and whether the balance of convenience would justify grant of the interim relief. 7. Thiru U. N. R. Rao for M/s. N. G. R. Prasad learned counsel for the plaintiffs would in particular contend, that the plaintiff Fleming (India) and Antox, had been using the respective trade marks, not as registered user under Section 48 of the Trade and Merchandise Marks Act nor was their manufacture in pursuance of a loan licences under Rule 69A of the Drugs and Cosmetics Rules, but that both that the manufacture and the use of the trade names had been under valid licences issued in the respective trade names by competent authorities under the Drugs and Cosmetics Act and the unqualified consent/undertaking given by the defendants relating to the trade names in reality amount to a total surrender of their rights over the trade names in favour of the plaintiffs. The further conduct of the defendants in permitting the plaintiffs to have the licences renewed from time to time in the trade names, indicated a clear intention of surrender of their rights over the trade names. The long user of the trade names by the plaintiffs had clothed them with propriety rights over the same. The four licences issued by the Drug Controller. Gujarat while the plaintiffs' licences in the trade names were subsisting would only lead to manufacture of spurious drugs by the defendants attracting Sections 17B(i)(a) and (b). The existence of valid licences in the trade names on the date of the suits would prima facie establish the plaintiffs' case and the balance of convenience being in their favour would entitle them for the interim relief. 8. The existence of valid licences in the trade names on the date of the suits would prima facie establish the plaintiffs' case and the balance of convenience being in their favour would entitle them for the interim relief. 8. Answering the above contentions, Thiru V. P. Raman for Thiry C. Franco Louis, learned counsel for the defendants would submit that the defendants had always been the owner and the user of the trade marks even after the consent/undertaking referred to by the plaintiffs had been given, since the manufacture by the plaintiffs was only for and on behalf of the defendants, being done under their control and supervision-and the mere ministerial set of affixing the trade name of the defendants having been entrusted to the plaintiffs, would create no rights in them over the trade names. In five out of the eight products' trade names had already been registered while for the remaining three, registration was pending. In the absence of a provision in the Drugs and Cosmetics Act similar to Section 12 or 28 of the Trade and Merchandise Marks Act, and Section 20 of the Companies Act, 1956, there could be no legal bar, to simultaneous issue of more than one licence in the same trade name, as has been done by the Gujarat authority. The learned counsel would strongly urge that the Drugs and Cosmetics Act being primarily concerned only with the qualify control of drugs, could not, by its licences, determine the rights of parties to the trade names, particularly when Section 2 of the Drugs and Cosmetics Act provides that the provisions of the Act, would be in addition to and not in derogation of any other law for the time being in force. The licences, therefore could not be the basis for injunction the defendants in this passing off action. 9. At this stage, we shall consider the question only on the basis of the admitted facts. The suits relate to 8 drugs mentioned above, which are patent/propriety medicine as defined in, Section 3(h)(ii) of the Drugs and Cosmetics Act. Section 18(c) of that Act prohibits manufacture for sale of any drug by himself or by any other person on his behalf, except under and in accordance with the conditions of licences issued for such purpose under that chapter. Section 27 provides penalty for infringement of the provisions. Section 18(c) of that Act prohibits manufacture for sale of any drug by himself or by any other person on his behalf, except under and in accordance with the conditions of licences issued for such purpose under that chapter. Section 27 provides penalty for infringement of the provisions. Under the Act every manufacture is on behalf of the manufacturer himself except when Rule 69A of the Drugs and Cosmetics Rules 1945 is resorted to. The above rule contemplates issue of a loan licence to an applicant who does not have his own arrangement for manufacture but intends to avail himself of the manufacturing facilities of another by a licence in Form 25. Every licence for manufacture, is for manufacture for sale-either in wholesale or in retail. Unlike in the case of other products, in the case of pharmaceutical products, 'manufacture' includes packing, labeling also as is seen from Section 3(f), Rule 96(1)(a) which lays down the manner of labeling contemplates, including in the label, besides the proper name of the drug, a trade name also. In such a contingency, the proper name of the drug has to be printed or written in a more conspicuous manner than the trade name, if any, which has to be shown immediately after and under the proper name. The Trade & Merchandise Marks Act provides for a situation when one who is not the proprietor of the trade mark, could still use it by getting himself registered as a registered user of the trade mark under Section 48 of the Act on the basis of an agreement between him and the registered proprietor of the trade mark. This agreement for registering as a registered user could be for a period stipulated therein or may be without limit of any period. Under Section 52, the Registrar of Trade Marks is empowered to cancel such registration, for any one of the reasons mentioned therein. Section 2 of the Drugs and Cosmetics Act provides, that the Act is in addition to and not in derogation or any other law for the time being in force. Both the Acts therefore, have to be read together. 10. Section 2 of the Drugs and Cosmetics Act provides, that the Act is in addition to and not in derogation or any other law for the time being in force. Both the Acts therefore, have to be read together. 10. The plaintiffs have been manufacturing under licences by the Drug Controller Karnataka, in respect of all the eight drugs covered in the suits, vic., Depsodiaz, Curaminth, Synamox, Hexathane, Dysonac, Ganrilon, Bronkine, Cal-De-Ce, since 1980, 1981, 1980, 1984, 1986, 1985, 1985 and 1986 respectively. These licences are in the trade names and have been renewed periodically, being valid up to 31-12-1989. The suits had been filed on 2-9-1988. 11. All the above eight licences had been issued only after the Drug Controller, Karnataka calling for consent/undertaking from the defendant. In the case of Depsodiaz, Dysonac, Ganrilon, Bronkine and Cal-De-Ce, undertakings had been given and in respect of the other drugs consent letters had been given by the defendant. It is seen that these consent/undertaking letters were called for by the Drug Controller, Karnataka to enable him to issue the licences in the trade names in favour of the plaintiffs. The letter relating to Ganrilon is to the effect that the plaintiffs Antox, had to submit consent letter and declaration from the defendant if the trade name belonged to the defendant, that the product would not be manufactured simultaneously, either by the defendant or by someone on their behalf. The Drug Controller's letter to Antox relating to Cal-De-Ce, is also to the effect that if the application to Antox to manufacture Cal-De-Ce could be considered. M/s. Wander would have to give an undertaking to the effect that they would not simultaneously manufacture such product nor authorise anyone else to use the trade name. It is on such requirement that the defendant has given the consent/undertaking to the Drug Controller, Karnataka in respect of all the eight Drugs. In the case of letters of consent, it is stated by the defendant referring to the plaintiffs, we have allowed them to use our trade names. It is on such requirement that the defendant has given the consent/undertaking to the Drug Controller, Karnataka in respect of all the eight Drugs. In the case of letters of consent, it is stated by the defendant referring to the plaintiffs, we have allowed them to use our trade names. In the case of undertakings, besides authorising the plaintiffs to use their trade mark, it is further stated that the defendant would not give authorisation to any other company to use the trade mark for the same formulation and they would not manufacture either by themselves or under loan licence with any company or by any other person on their behalf the product manufactured by the plaintiffs under their trade name. It is only after such consents/undertakings have been given by the defendant, licences to the plaintiffs in the trade names had been granted. As already seen, the consents/undertakings are not qualified regarding the period or the place of manufacture nor is a right to withdraw the permission at any future date reserved. The fact that there is no reservation regarding the place of manufacture, rules out the defendants contention that the undertaking given to Wander Ltd., on 21-6-1986 would not hold good for the later licence to manufacture at a different premises. In the counter filed to the injunction applications, the defendants would repeatedly urge that the Drug Controller, Karnataka issued the licences based only on the above letters given by them, as required by the Drug Controller. These licences in the trade names have been permitted to be renewed and were valid as on the date of the filing of the suits. 12. Thiru V. P. Raman, learned counsel, would still urge that the label in addition contains a statement that the trade mark is that of the defendant. The plaintiffs would contend that such a statement had to be made, due to the financial strain and commercial compulsion, which the plaintiff in its struggle for survival in the trade alongside giant concerns like the defendant, could not with stand. The plaintiffs would contend that such a statement had to be made, due to the financial strain and commercial compulsion, which the plaintiff in its struggle for survival in the trade alongside giant concerns like the defendant, could not with stand. Whatever that be, once on the basis of a written consent/undertaking given by the defendant, the statutory authority had acted to grant licences in the trade names is favour of the plaintiffs, which had been periodically renewed, it would not be open to the Drug Controller, Gujarat to issue parallel licences in favour of anyone else so long as the earlier licences were in force. The plaintiffs had licences to manufacture for sale with the trade names and had indeed sold the manufactured stock in bulk to the defendants. Its user of the trade marks pursuant to the licence obtained, was not the user of a registered user under Sections 48 and 49 of the Trade and Merchandise Marks Act, nor was its manufacture carried out in pursuance of any loan licence taken out by the defendant under Rule 69A of the Drugs and Cosmetics Rules. 13. The fact that the defendant has withdrawn his consent would be of no significance in considering the interim relief, since the right to withdraw and the effect of the withdrawal would all be matters which would have to be gone into only during trial. We also take note of the fact that the competent authority Drug Controller, Karnataka, at whose instance the consent/undertaking was given has not chosen to act on the withdrawal. A licence validly granted could only be cancelled for the reasons stated in Rule 85 of the Drug and Cosmetics Rules. 14. The plaintiffs would rightly rely upon the judgment of this court in Lavergna and another v. Hooper (LR 8 Mad 149), wherein it was held that where the plaintiffs therein, by their conduct, had allowed the defendant therein to believe that they claimed no right to a certain trade mark, it was open to the defendant to adopt it as his own and when he did so and had built up his industry, securing wide popularity in the market, the plaintiffs were estopped from denying the defendant's right to use the trade mark. Reliance was also placed upon a judgment of the High Court of Delhi in Century Traders v. Roshan Lal Duggar and Co. Reliance was also placed upon a judgment of the High Court of Delhi in Century Traders v. Roshan Lal Duggar and Co. and others 1978 AIR(Delhi) 250) wherein following the decisions of the Supreme Court referred to therein, it was held that for getting an interim injunction in a passing off action, the plaintiff had to establish user of the mark prior in point of time than the impugned user by the defendants and the mere registration of the mark, prior in point of time to user by the plaintiff, would not prove user by the person, in whose name the mark was registered and was totally irrelvent for deciding the application for interim injunction. 15. The plaintiffs manufacture with the trade names, under licences in the trade names and the consequent user of the trade names establish a prima facie case for passing off action and the balance of convenience, requiring the status quo to be maintained, the plaintiffs having had the benefit of the injunction from 23-9-1988 till 2-3-1989 when it was vacated and from 2.5.1989 when this court granted the injunction the plaintiffs would be entitled to have the interim injunction as prayed for by them. 16. In the result, all the appeals are allowed. There will be injunctions in such terms as have been prayed for the plaintiffs in their respective application. No costs.