V. B. Bansal ( 1 ) WHETHER the plaintiff is entitled to an injunction restraining the defendants, their servants, agents, dealers, stockists, distributors and all other persons on their behalf from manufacturing, marketing, stocking, offering for sale or otherwise dealing in spices, condiments, karyana goods and other edible goods under the trade mark shakti Bhog or any other trade mark identical or deceptively similar to the trade mark shakti Bhog . This is the point to be decided by way of this order, which has arisen for consideration. ( 2 ) SHRI Kewal Krishan Kumar has filed a suit for perpetual injunction and rendition of accounts against M/s. Akash Spices and Food Industry, defendant. It has been submitted by the learned counsel for the plaintiff that the defendant has violated the terms of the licence by way of Agreement dated 5. 4. 91, granted to the defendant for the use of the trade mark Shakti Bhog on account of which the Agreement was terminated and, so, the defendant was not entitled to continue the use of the trade mark shakti Bhog of the plaintiff. ( 3 ) ALONGWITH the suit an application under Order 39 Rules 1 and 2 read with Section 151 Civil Procedure Code. has been filed, praying for ad-interim injunction till the disposal of the suit. Submission of the learned counsel for the defendant has been that the plaintiff was not the registered owner of the trade mark shakti Bhog in respect of spices and condiments and the Agreement of licence was got executed by the plaintiff by fraud and deceitful means. It is, in these circumstances, pleaded that the suit was misconceived and the plaintiff was not entitled to any ad-interim injunction. ( 4 ) SUMMONS in the suit and notice in the application were issued to the defendants and in pursuance of the same written statement as well as the reply have been filed. ( 5 ) BEFORE considering the arguments advanced by the learned counsel for the parties for the disposal of the application for ad-interim injunction, it would be appropriate to refer to the facts in detail. ( 6 ) SHRI Kewal Krishan Kumar, plaintiff, has been carrying on business under the name of Kumar Dal Mills as its sole proprietor, dealing in floor (atta), gram floor, besan, dal, maida and other preparations made therefrom. ( 6 ) SHRI Kewal Krishan Kumar, plaintiff, has been carrying on business under the name of Kumar Dal Mills as its sole proprietor, dealing in floor (atta), gram floor, besan, dal, maida and other preparations made therefrom. He has been using the trade mark shakti Bhog for the aforesaid goods since 1975. This trade mark shakti Bhog was got registered by the plaintiff under the Trade and Merchandise Act in Clause 30 on 16. 6. 82 in respect of floor, dal (broken grams), Besan and other preparations made from cereals. This registeration is valid till date. ( 7 ) IT has been claimed by the plaintiff that the trade mark shakti Bhog has continuously, regularly and extensively, without any interruption, been in use ever since it was adopted in the year 1975 and he has given wide publicity to this trade mark and the karyana goods, having spent huge amounts on the advertisements and the sales run into crores of rupees. It is also pleaded that the trade mark shakti Bhog has acquired unique reputation and enviable goodwill among the public and the trade and the goods bearing the trade mark shakti Bhog connote the goods and merchandise of the plaintiff and of no one else. ( 8 ) THE further claim of the plaintiff has been that in November 1990 the defendant approached the plaintiff for licence to use shakti Bhog trade mark of the plaintiff and for technical know how as to quality standard and specifications, resulting in an Agreement which was drawn and signed by the parties. This Agreement was, however, not acted upon, but, subsequently, on 5. 4. 91 a fresh Agreement was entered into between the parties under which the defendant was granted a non-exclusive and non-transferrable licence to use the trade mark shakti Bhog in respect of spices and condiments as by way of permitted use, subject to the terms and conditions detailed in the Agreement. The defendant had agreed to pay 5 per cent of the gross sales of spices and condiments of every preceding month to the plaintiff by 7th day of every succeeding month and the plaintiff was also given the right to enter the premises of the defendant and to check the quality of the goods manufactured by the defendant as also to check the books accounts, stock registers and other related documents to verify the correctness thereof. ( 9 ) IN pursuance of the aforesaid Agreement the plaintiff issued a no objection letter to the Egmark authorities for the use of the trade mark label shakti Bhog by the defendant for spices and condiments. It is pleaded, by the plaintiff that till January 1992 the defendant failed to put in the market the spices and condiments on the plea that he was trying to make up the quality to suit the specifications given by the plaintiff. It is further pleaded that in February 1992 the defendants obtained some Egmark labels from the authorities but the plaintiff was not satisfied with the quality of the spices manufactured by the defendant and when the plaintiff visited the premises of the defendant on 12. 6. 92 and 16. 7. 92 to check up the quality of spices, he was not permitted to do so. It is, in these circumstances, that the plaintiff is claimed to have written a letter dated 21. 7. 92 to the Egmark authorities, withdrawing his consent for use of the trade mark shakti Bhog for Egmark spices of the defendant. ( 10 ) FURTHER averments made in the plaint have been that on 13. 8. 92 the defendant sent a letter to the plaintiff, virtually terminating the Agreement and asked for compliance of unwarranted and unjustified demands. It is claimed by the plaintiff that the licence has since been terminated but the defendants are continuing the business causing irreparable loss to the plaintiff in reputation as also monetary loss as the defendants are passing off their spurious spices and condiments under the plaintiff s trade mark shakti Bhog It is also pleaded that the Atta, Rice, other karyana goods, spices and condiments are the goods of same description which are sold in the same shops and the public is misled in the belief that the goods marketed by the defendant are those of the plaintiff. It is also pleaded that the plaintiff has filed another application for registration of the trade mark shakti Bhog under No. 472286 in Clause 30 and the same has been ordered to be advertised in the Trade Mark Journal by the Registrar of Trade Marks in respect of flour, dal, broken grams, besan, sugar, tea, coffee, preparation made from cereais, ices, honey, treacle, yeast, baking powder, salt, mustard, pepper, vinegar, sauces and spices included in Clause 30 and the plaintiff is likely to succeed in getting the registration certificate. ( 11 ) IT is, in these circumstances, the plaintiff has filed this suit in which a further relief for rendition of accounts has also been claimed. Similar averments have been made in the application under Order 39 Rules 1 and 2 read with Section 151 Civil Procedure Code. ( 12 ) DEFENDANT has filed, written statement as also reply to the application. The defendant has denied all the averments made by the plaintiff and claimed that the suit has not been properly filed as the person signing the plaint has no legal status to file the suit. It has also been pleaded that the plaintiff is neither the registered proprietor of the trade mark shakti Bhog . alleged to be registered at No. 381944 in Clause 30 nor the proprietor of the said trade mark in relation to flour, dal, broken gram, besan, sugar, tea, coffee, preparation made cereals, ices, honey, treacle, yeast, baking powder, salt, mustard, pepper, vinegar, sauces and spices included in Clause 30 and that the application pending before the Trade Mark Registrar is in violation of the defendant s right to the trade mark shakti Bhog and that the application was being opposed. ( 13 ) IT is also pleaded that the aforesaid registration is in the name of three persons, i. e. , Jagmohan Kumar, Kewal Krishan Kumar and Harbans Lal Kumar, trading as M/s. Kumar Dal Mills and that the plaintiff has not used and has no bonafide intention of using the same in relation to the goods mentioned under application No. 472886. It is also pleaded that the plaintiff entered into licence Agreement pertaining to the trade mark shakti Bhog bearing registration No. 391844 in Clause 30 with the defendant, fraudulently, dishonestly and with improper and sinister motives by misrepresentation and concealing the material facts, as the alleged registered trade mark is not registered in respect of spices and condiments. It is also claimed that the defendant is the proprietor of the trade mark shakti Bhog in relation to spices and condiments on account of it prior, exclusive and continuous user since the year 1991 and has already built up a valuable trade and reputation under the trade mark, which has become the distinctive mark of the defendant. ( 14 ) THE defendant has denied that the trade mark shakti Bhog is the exclusive property of the plaintiff in respect of karyana and edible products and that the defendant entered into the licence agreement with the plaintiff on a representation that the trade mark shakti Bhog is registered in Clause 30 under the provisions of Trade and Merchandise Act and that the plaintiff deliberately and fraudulently did not inform the defendant about its non-registration for spices and condiments. The defendant has further pleaded that the royalty was tendered to the plaintiff but he refused to accept the same for reasons best known to him and that vide legal communication dated 13. 8. 1992 the defendant asked for certain clarifications and compliance, but the plaintiff endeavoured to twist the whole issue and denied that the licence agreement was terminated by the defendant. The defendant has also claimed that the licence agreement was still subsisting. A prayer has, therefore, been made that the suit may be dismissed. ( 15 ) I have heard the learned counsel for the parties and have also gone through the record. There are certain facts which are not disputed between the parties. It would be appropriate to refer to the same as the decision on the application would be easier with reference to these facts. ( 16 ) THE trademark "shakti Bhog" of the plaintiff is duly registered with the Registrar under No. 391844 in Clause 30 as of 16. 6 1992 in respect of flour, dal, broken gram, besan and other preparations made from cereals and this registration is valid till date. ( 16 ) THE trademark "shakti Bhog" of the plaintiff is duly registered with the Registrar under No. 391844 in Clause 30 as of 16. 6 1992 in respect of flour, dal, broken gram, besan and other preparations made from cereals and this registration is valid till date. It is also the admitted case of the parties that a licence agreement was entered into between the parties in December 1990, which was not acted upon and, subsequently, licence Agreement dated 5. 4. 1991 was executed, thereby the defendant was given licence for the use of trade mark "shakti Bhog" by way of permitted use only in respect of spices and condiments, which work was being carried on by the defendant earlier, but not under the name of "shakti Bhog". There were stipulations as to how the licence fee was to be paid and what control the plaintiff was to have on the manufacturing activity of the defendant. ( 17 ) IT is also the admitted case of the parties that after the grant of this licence, the defendant started the use of trade mark "shakti Bhog" in respect of spices and condiments and since then they have been in continuous use of the same. It is also the admitted case of the parties that a letter dated 13. 8. 1992 was written by the defendant to the plaintiff in which it has inter alia been claimed that the plaintiff was not the registered owner of the trade mark "shakti Bhog" in respect of spices and condiments and that the Agreement was got entered into by fraud and deceitful means and with improper and sinister motives and misrepresentation. It was also pleaded that there was no right given to the plaintiff to write to the Deputy Agricultural Marketing Advisor that the spices and condiments being manufactured and marketed by the defendant under the trade mark "shakti Bhog" were not according to specifications and were of sub-standard quality. In this way, the defendant had asked the plaintiff to refund the amount received by the plaintiff alongwith interest and to pay a sum of Rs. 10,00,000 as damages, besides a sum of Rs. 3,00,000 on account of expanses, besides an unconditional apology. The defendant also claimed that the plaintiff has no property or statutory rights over the trade mark "shakti Bhog" for spices and condiments. 10,00,000 as damages, besides a sum of Rs. 3,00,000 on account of expanses, besides an unconditional apology. The defendant also claimed that the plaintiff has no property or statutory rights over the trade mark "shakti Bhog" for spices and condiments. It is also the admitted case of the parties that a reply dated 5. 9. 1992 was sent by the plaintiff, controverting all the claims of the defendant and claiming that the defendant was given licence, the terms of which have been violated by the defendant. Another notice dated 5th September, 1992 was also given by the plaintiff to the defendant, terminating the licence Agreement forth with. ( 18 ) LEARNED counsel for the plaintiff has submitted that the plaintiff has been using the trade mark "shakti Bhog" and has gained a name and fame in the market. It has also been submitted that the defendant started the use of the name "shakti Bhog" for spices and condiments only after entering into an Agreement of Licence with the plaintiff and that after taking benefit of the terms of the licence it is not open to the defendant to claim that the licence was not valid and, thus, there is strong prima facie case in favour of the plaintiff restraining the defendant frem using the trade mark "shakti Bhog" so as to cause damage to the reputation of the plaintiff, besides, causing monetary loss. It has further been submitted that the plaintiff was not permitted to inspect the factory where the spices and condiments are being manufactured and the plaintiff is suffering irreparable loss. Learned counsel for the defendant has, on the other hand, submitted that the plaintiff is not the sole proprietor of this registered trademark "shakti Bhog". He has further submitted that the licence Agreement is subsisting and has not been cancelled, as provided in the Agreement itself where a three months notice was required to be given. In this way, the submission of the learned counsel for the defendant has been that the licence Agreement is subsisting and on that account the suit is not competent and, so, no interim relief can be claimed. In this way, the submission of the learned counsel for the defendant has been that the licence Agreement is subsisting and on that account the suit is not competent and, so, no interim relief can be claimed. He has further submitted that, in fact, the defendant has suffered a lot, having spent huge amounts and that the plaintiff has no right to stop the manufacture and sale of the spices and condiments under the trade mark "shakti Bhog" since plaintiff is not the registered owner of the trademark "shakti Bhog" in respect of spices and condiments. A prayer has, therefore, been made that the application may be dismissed. ( 19 ) THE plaintiff has placed on record Certificate of Registration of Trade Mark bearing Trade Mark No. 391844 dated 16. 6. 1982 in favour of S. /s. Jagmohan Kumar, Kewal Krishan Kumar and Harbans Lal Kumar, trading as Kumar Dal Mills. The present suit has been filed by Sbri Kewal Krishan Kumar, trading as Kumar Dal Mills. Plea of the plaintiff has been that S/s. Jagmohan Kumar and Harbans Lal Kumar are the real brothers of the plaintiff, who retired from the partnership firm on t. 9. 1990 leaving the trade marks and goodwill of the firm in favour of the plaintiff. Reference in this regard can be made to Para (2) of the Replication. In these circumstances, it cannot be said at this stage that the suit has not been filed by a competentperson or that other persons are also trading under the name of Kumar Dal Mills. In any case, this can give no right to the defendant to claim the user of the trade mark on account of others also using the same. Reference in this regard can be made to Section 28 of the Act, A bare reading of this section makes it abundantly clear that if a trade mark is registered in the name of more than one person they may contest the registration inter se, but as against third persons each one of them can initiate action if the said registration is being used by a third party. It cannot be a valid defence by a person using the trade mark to plead that since more than one person is having the registered trade mark in his favour, he used the same. The validity of registration cannot be challenged in a case of junction. It cannot be a valid defence by a person using the trade mark to plead that since more than one person is having the registered trade mark in his favour, he used the same. The validity of registration cannot be challenged in a case of junction. Reference in this regard can be made to the case Hindustan Embroidery Mills (P.) Ltd. v. K. Ravindra and Co. 1. ( 20 ) LEARNED counsel for the plaintiff has submitted that the articles, i. e. , floor, dal, broken grams, besan and other preparations made from cereals, are of the same category as the spices and condiments, which are sold at one and the same place and that by selling their products using the trade mark "shakti Bhog" the general public takes the goods of the defendant to be connected with the trade of the plaintiff. He has also submitted that the defendant having started the use of the trade mark "shakti Bhog" for their products and having taken benefit of the same, it is not open to them at this stage to claim that there is no valid Agreement of Licence and he cannot be permitted to continue the use of the trade mark "shakti Bhog". Learned counsel for the defendant has submitted that in the absence of the licence having been cancelled, the Agreement is subsisting and, so, the plaintiff should take recourse to the proceedings under the Agreement. He has, thus, submitted that the present suit is not competent. I am afraid this argument, though attractive, is without any foundation. A bare reading of the notice dated 13. 8. 1992 by the defendant, served upon the plaintiff, makes it abundantly clear that the defendant has claimed that the Agreement has been obtained by fraud, misrepresentation and dishonestly and, thus, cannot be of any help and rather huge amounts have been claimed by it. It is also pertinent to note that the defendant had claimed refund of the amount alongwith interest from the plaintiff on the plea that the amounts have been received by the plaintiff. Learned counsel for the plaintiff has, however, submitted that in fact, no payment at all has been made to the plaintiff by the defendant as a share in terms of the licence agreement and this fact was not controverted at the time of arguments. Learned counsel for the plaintiff has, however, submitted that in fact, no payment at all has been made to the plaintiff by the defendant as a share in terms of the licence agreement and this fact was not controverted at the time of arguments. It is, thus, clear that the defendant has put forward contradictory pleas and the only motive of the defendant seems to be to defeat the claim of the plaintiff by taking all possible pleas, regardless of there being any force in the same. I have not been able to appreciate as to how the defendant could claim the Agreement to be still subsisting when it is claimed that the same has been obtained by fraud and misrepresentation and is not binding on the defendant. A party taking advantage under an Agreement cannot be permitted to deny the benefit of the Agreement to the other party. ( 21 ) IT is well established that the reputation should attach to the trade mark and not to the fact as to who is the owner of the trade mark and who is the maker of the goods. A buyer may not know who is the manufacturer of the goods, but, certainly, the goods acquire the reputation with reference to its mark. Action for the infringement is a statutory remedy conferred upon 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 the goods. In such an action all that the plaintiff is required to prove is that the use of the mark by the defendant is likely to deceive the public. In the present case, admittedly, the defendant has started the use of the trade mark "shakti Bhog" in respect of spices and condiments only after entering into an Agreement with the plaintiff, who is the registered owner of the trade mark in respect of besan, broken grams, etc. A perusal of the packing of the cartons used by the defendants makes it abundantly clear that the trade mark "shakti Bhog" is conspicuously written both alongwith the words "kdm" (referring to Kumar Dal Mills ). A perusal of the packing of the cartons used by the defendants makes it abundantly clear that the trade mark "shakti Bhog" is conspicuously written both alongwith the words "kdm" (referring to Kumar Dal Mills ). It would certainly lead public to believe that the spices and condiments are the products of the party who is the registered owner of the trade mark "shakti Bhog" and, thus, the defendant cannot use this mark, having claimed that there is no valid subsisting licence Agreement with the plaintiff. The submission of the learned counsel for the defendant that the plaintiff being not the owner of the trade mark "shakti Bhog" in respect of spices and condiments could not have entered into an Agreement with the defendant, in my view, has no force. It would, at this stage, be appropriate to refer to the case Ceat Tyres of India Ltd. v. Jai Industrial Services and another2. In this case the plaintiff was the owner of the registered trade mark "ceat" in respect of pneumatic and solid tyres for vehicles. The defendant started selling fan belts and v belts under trade name "ceat". It was held that the same shops which sell the tyres also sell v belts and fan belts and all these goods are manufactured from the same material rubber/synthetic rubber, and, so, prima facie possibility of customers being confused in buying the goods of defendants treating them to be of the plaintiff cannot be overruled. It was also held that the trade mark ceat has achieved lot of reputation and has become very common and the plaintiff has been marketing goods under it running into substantial amounts and had incurred lot of expenditure on wide publicity. In the instant case the plaintiff has given the details of amounts spent on publicity in respect of their goods under the trade mark "shakti Bhog", which run into crores and they have also been spending huge amounts on advertisements. This judgment is fully applicable to the present case and the present case is still stronger, in as much as, the defendant has started the use of the word "shakti Bhog" only under an Agreement of licence and not otherwise. ( 22 ) LEARNED counsel for the defendant has referred to the case Nastle s Products Ltd. and others v. M/s. Milkmade Corporation and another3. ( 22 ) LEARNED counsel for the defendant has referred to the case Nastle s Products Ltd. and others v. M/s. Milkmade Corporation and another3. It was a case with regard to the use of the trade mark milkmaid . It was a case by M/s. Nestle Products Limited against M/s. Milkmaid Corporation, claiming that they were the registered owner of the trade mark milkmaid in respect of condensed milk. The defendant Corporation started the use of the mark milkmade in respect of toffees. It was held that the biscuits and toffees were not produced by the plaintiff and the wrappers were printed with the words milkmade Corporation and action for passing of could not be supported. The facts of this case are distinguishable, in as much as, here is a case where the defendant had started the use of the trade mark "shakti Bhog" only under an Agreement of Licence, which now is being repudiated after getting benefit of the name of this trade mark. ( 23 ) LEARNED counsel for the defendant has also relied upon the case of M/s. Parry and Co. Ltd, Madras v. M/s. Perry and Co. , Usilampatti Maduri4. In this case the trade mark "parry s" was registered in favour of the plaintiff for confectionery items. Defendant had started the use of the trade mark "perry s" in respect of biscuits. It was held that confectionary is a sweetmeat, while biscuit, is in the nature of dry bread which has the characteristic of being baked and, thus, it could not be said that biscuit and confectionary are identical, it was also observed that there could be fancy biscuits in which confectionary can be put on the top of them, but the essential characteristic of biscuit is different from that of confectionary. This judgement again, in my view, cannot be of any help to the defendant since, as already referred to, the defendant has already taken advantage of the trade mark "shakti Bhog" and now cannot be permitted to continue using the same, thereby giving the impression to the public that these are the goods of the plaintiff and, thus, derive benefit out of it. ( 24 ) BY selling spices and condiments under the trade mark "shakti Bhog", the defendant would be passing off his goods as that of the plaintiff under its registered trade mark "shakti Bhog", which is not permissible. ( 24 ) BY selling spices and condiments under the trade mark "shakti Bhog", the defendant would be passing off his goods as that of the plaintiff under its registered trade mark "shakti Bhog", which is not permissible. The plaintiff, thus, has a strong prima facie case and balance of convenience also lies in favour of the plaintiff. ( 25 ) AS a result, the application is allowed and the defendant, its servants, agents, dealers, stockists, distributors and representatives are restrained from manufacturing, marketing, offering for sale or otherwise dealing in spices and condiments under the trade mark "shakti Bhog" or any other trade mark which is identical and/or deceptively similar to the trade mark "shakti Bhog" of the plaintiff, till the disposal of the suit. ( 26 ) IT may, however, be clarified that the observations made in this order are only for the decision of this application and will have no effect on the final decision in the suit. The suit shall be decided on the basis of the evidence adduced by the parties.