Judgment :- P.D. Dinakaran, J. 1. The above O.S.A. No. 60/91 is directed against the Judgment and Decree dated 5.3.1990 of the learned Single Judge made in C.S. No. 649 of 1990. The appellants herein are defendants in the Suit filed by the respondents/plaintiff herein. For the purpose of convenience, the parties are described as per their rank in the appeal. 2. The respondent/plaintiff filed C.S. No. 649/90 for a Judgment and Decree viz., (a) Granting a permanent injunction restraining the defendants by themselves, their servants or agents or any one claiming through them from infringing the plaintiffs' registered Trade Marks Nos. 130300, 130302, 204176 and 293433 (SPENCERS SODA WATER, SPENCER & CO. LTD., SPENCER'S and Spencer's) by the use of the offending Spencer's Trade marks advertised in dailies and forthnightlies M.O. Nos. 6 to 8 marked as document Nos. 15 to 19 and/or using any mark containing their essential features or any part thereof or from manufacturing or selling or offering or advertising for sale of goods dealing in mineral aerated waters and beverages bearing of the said trade marks or any other trade mark which is in any way deceptively similar to or a colourable imitation of the plaintiff's' aforesaid Registered Trade Marks. (b) Granting a permanent injunction restraining the defendants by themselves, their servants or agents or anyone claiming through them from passing off their goods as and for the plaintiffs' celebrated Spencer's products by the use of the offending Spencer's trade mark advertised in dailies and fortnightly and M.O. Nos. 6 to 8 marked as document Nos. 15 to 19 and in particular for restraining the defendants, their servants and agents for manufacturing, stocking and selling or offering for sale or otherwise dealing in mineral and aerated waters and fruit juices and other beverages falling under Clause 32 of the Fourth Schedule of the Trade and Merchandise Marks Rules, 1959 under the aforesaid offending trade mark or any deceptively similar mark or marks and/or doing any act or deed calculated or likely to deceive purchasers with the belief that they are purchasing the goods of the plaintiffs. (c) Directing the defendants to render a true and faithful account of the profits earned by them through the manufacture and sale of the offending Spencer's goods and directing such profits to be paid to the plaintiffs by way of damages for the infringement and passing off committed by the defendants. (d) Directing the defendants to surrender to the plaintiffs all the bottles, labels, hoardings and any other printed matter containing or consisting of the offending Spencer's trade mark together with the blocks and dyes used for the purpose of printing the same, bearing the aforesaid trade marks for destruction or erasure of the infringing marks, And for the cost of the Suit under the facts stated below in brief. 3. According to the plaintiffs they are trading in mineral and aerated waters and fruit juices as well as in other beverages falling under Clause 32 of the Fourth Schedule of the Trade and Merchandise Marks Rules, 1959, with distinctive trade marks "SPENCERS SODA WATER", " SPENCER & CO. LTD."," SPENCER'S"and" Spencer's". 4. The plaintiffs alleged that they have duly registered the trade marks, namely, 'Spencers Soda Water' and 'Spencer & Co. Ltd.' under the Trade Mark Act, 1940 (corresponding to the Trade and Merchandise Marks Act, 1958 5. The plaintiffs further alleged that they have been manufacturing and selling Soda Water, Lemonade, Orange, Kola and Dry Ginger Ale under the aforesaid Spencer's trade marks. The principal place of plaintiffs' business is at Madras and they have branches at Bangalore, Calcutta, Calicut, Coimbatore, Ernakulam, Goa, Mangalagiri, Madurai, Ootacamund and Trivandrum. 6. By virtue of long exclusive and extensive use of the aforesaid trade marks, and due to the very wide publicity given thereto, and in view of very extensive sales promotion work carried out by the plaintiffs in respect thereof, and the superior quality of the goods sold thereunder, the trade and the public have come to identify and associate the plaintiff's aforesaid trade marks exclusively with the goods of the plaintiffs and of none else. 7. The plaintiffs further allege that in or about 9th October 1978, it came to their notice that the second defendant Bijoli Grill Spencer's Products were being sold and marketed under the trade mark called Spencer's which was identical with the plaintiff's trade mark Nos. 204176 and 293433. 7. The plaintiffs further allege that in or about 9th October 1978, it came to their notice that the second defendant Bijoli Grill Spencer's Products were being sold and marketed under the trade mark called Spencer's which was identical with the plaintiff's trade mark Nos. 204176 and 293433. That apart, the second defendant advertised in the "Statesman" on 9.10.1978 offending the trade mark of the Plaintiff, viz. Spencer's with regard to aerated waters namely "Spencer's Ice Cream Soda". 8. After a thorough investigation, the Plaintiffs found that the aerated waters offending the Plaintiff's trade mark namely Spencer's were being sold by Bijoli Grill Caterers, namely the sixth defendant and therefore the plaintiffs sent a registered notice dated 10.11.1978 to the sixth defendant calling upon them to desist from using the plaintiff's trade mark Spencer's. The sixth defendant, thereafter replied on 27.11.1978 and denied any use or infringement of the plaintiff's trade mark. 9. However, again on 12.5.1979, an advertisement appeared, inserted by the second defendant in the " Statesman"and" Amrita Bazar Patrika", Calcutta offending the plaintiff's trade mark Spencer's. The same advertisement again reappeared on 14.5.1979 in the fortnightly "New Delhi" and again on 9.6.1979 in the "Statesman". 10. The plaintiffs also purchased three bottles of aerated water that were produced and sold by the defendant offending the plaintiff's trade mark Spencer's. The search made by the plaintiffs in the Trade Marks Registry revealed prima facie that the sixth defendant had made an application for the registration of the trade mark Spencer's and thereafter, the plaintiffs again served another notice dated 21.8.1979 to the sixth defendant; on receipt of which the sixth defendant sent his reply dated 13.9.1979 reiterating the earlier reply dated 27.11.1978. The plaintiffs' further investigation revealed that the sixth defendant was having their factory at 177/17A, B.L. Saha Road, Calcutta - 700 053, and they were having their office at 29/1/1E, Chetla Road, Calcutta - 700 027. 11. The plaintiffs simultaneously caused another registered notice dated 5.9.1979 to the second defendant who also sent a reply dated 19.9.1979. In the said reply dated 19.9.1979, the second defendant has stated as follows:- "We do not dispute that we are using the trade mark SPENCERS on our manufacture of aerated waters but we claim our title to same independently of your clients rights and interest therein. In the said reply dated 19.9.1979, the second defendant has stated as follows:- "We do not dispute that we are using the trade mark SPENCERS on our manufacture of aerated waters but we claim our title to same independently of your clients rights and interest therein. We say that the registration of the mark SPENCERS by your clients have been obtained by your clients by fraud as they have been registered for all India even though the mark had not been in use by your clients in the Eastern part of India at any time in the past till this day. Your clients said registered marks are thus liable to be rectified on the above ground of non-user of the mark." * 12. The plaintiffs allege that the second defendant has admitted in their reply dated 19.11.1979 the use of trade marks Spencer's in the manufacture of aerated waters, and therefore, the defendants are guilty of deliberately and dishonestly infringing the plaintiff's registered trade mark Nos. 130300, 130302, 204176 and 293433. Hence, the plaintiffs have filed the above suit. 13. The respondent/defendant filed a detailed written statement denying the averments of the respondent/plaintiff. However, the respondent/defendant contends that they are entitled to advertise the said trade mark namely Spencer's in relation to their products, stating that the respondent/plaintiff had no exclusive right to use the said trade mark in relation to the aerated or mineral water or fruit juices as alleged by the respondent/plaintiff. 14. In the light of the averments in the plaint and the written statement, this Court framed the following issues for the trial:- (a) Has any part of the cause of action arisen within the jurisdiction of this Court and consequently has this Court jurisdiction to entertain or try or determine the suit? (b) Is the suit barred and is it not maintainable under the provisions of the Trade and Merchandise Marks Act, 1958? (c) Has the plaintiff got the exclusive right and title over the Trade mark and the Associated Trade marks as alleged? (d) Has the plaintiff been using the trade mark at such places Eastern India, West Bengal, Calcutta, etc.? (e) Has the plaintiff's alleged user of the trade mark been long, exclusive and extensive as claimed? (f) Are the defendants guilty of infringing the trade marks of the plaintiff as alleged? (d) Has the plaintiff been using the trade mark at such places Eastern India, West Bengal, Calcutta, etc.? (e) Has the plaintiff's alleged user of the trade mark been long, exclusive and extensive as claimed? (f) Are the defendants guilty of infringing the trade marks of the plaintiff as alleged? (g) Have the defendants passed off or been passing off their goods as and for that of the plaintiff's goods jointly and/or severally? (h) Have the defendants committed fraud as alleged? (i) Is not the second defendant entitled to exclusively use the mark "Spencers" in relation to mineral and aerated water and the other beverages in view of the assignment and transfer of the goodwill, trade name and marks and the right, title and interest of the former registered proprietors to and in favour of the second defendant pursuant to the directions of the High Court, Calcutta, issued by the order dated 25th October, 1979 in suit No. 754 of 1979? (j) Have the trade mark and the associated trade marks been under continuous prior user by the second defendant on account of successive assignments and transfers? (k) Has the plaintiff suffered loss of business and irreparable damage to its reputation and goodwill as claimed? (l) Whether there has been abandonment of the mark 6108 by the second defendant's predecessors-in-title? (m) Whether the assignment as pleaded by the second defendant is operative and valid and whether he has acquired title through Court decree? 15. The learned Single Judge, after a careful consideration of the evidence adduced, and exhibits marked on both sides, by a judgment and decree dated 5.3.1990 decreed the suit as prayed for. 16. Aggrieved by the said judgment and decree dated 5.3.1990, the appellant/defendant has preferred the above Appeal. 17. The learned counsel appearing on behalf of the appellant/defendant contended that the appellant/defendants were running a plant in Calcutta producing the aerated and mineral water and other allied products even prior to the respondent/plaintiff and therefore, the plaintiff could not claim any exclusive right over the trade mark Spencer's as prayed in the above suit. 17. The learned counsel appearing on behalf of the appellant/defendant contended that the appellant/defendants were running a plant in Calcutta producing the aerated and mineral water and other allied products even prior to the respondent/plaintiff and therefore, the plaintiff could not claim any exclusive right over the trade mark Spencer's as prayed in the above suit. The learned Counsel, while reiterating his grounds of appeal, more specifically contends that the bottles used by the appellant/defendant contained bold printed labels of Bijoli Grill on one side and Spencer's on the other side and therefore argues that the grievance of the respondent/plaintiff as to the infringement of their trade mark is not tenable in law. 18. The learned Counsel for the appellant/defendant also contends that since the appellant/defendant have now stopped the business in producing and trading the aerated and mineral water under the trade mark of Spencer's, the grievance of the respondent/plaintiff no more exists and consequently, the relief sought for in the above suit is not required. 19. The learned Counsel appearing on behalf of the respondent/plaintiff, on the other hand, contends that the respondent/plaintiff have valid and legal right with regard to the trade mark in question, namely SPENCERS SODA WATER? SPENCER & SPENCER COMPANY LTD., SPENCER'S and Spencer's in the light of the registration under the Trade Marks Act, 1940 in view of the register that in view of this there could be little chance of any confusion between the goods manufactured under licence in Ind red trade mark Nos. 130300, 130302, 204176 and 293433, they are entitled to claim the relief as prayed for and to execute the decree dated 5.3.1990 made in C.S. No. 649/79. 20. After hearing both sides, we do not find any sufficient reason to interfere with the judgment and decree dated 5.3.1990 made in C.S. No. 649/79 of the learned Single Judge. We are satisfied with the reasons given by the learned Single Judge in decree in the above suit as prayed for, as the same are well founded and based on the evidence on record as well as the exhibits and material objects marked. The reasons given by the learned Single Judge holding that this Court have got jurisdiction to try the suit is well founded. The reasons given by the learned Single Judge holding that this Court have got jurisdiction to try the suit is well founded. Similarly, the learned Single Judge has rightly decided the issues 3, 4 and 5 in favour of the respondent/plaintiff, holding that the respondent/plaintiff has got exclusive right and title over the trade marks, namely, Spencers Soda Water, Spencers & Co., SPENCERS and Spencers. The finding of the learned Single Judge in this regard is based on the oral and documentary evidences as well as the evidence of the material objects. The learned Single Judge also rightly decided the issue No. 6 in favour of the respondent/plaintiff holding that the appellant/defendants are guilty of infringing the trade marks of the respondent/plaintiff. The appellant/defendants have no valid reason to justify their act of infringement of the said registered trade marks of the respondent/plaintiff. That apart the reasons given by the learned Single Judge for the findings in the other issues, namely, 6, 12, 13, 8, 2 and 14 are all based on the evidences on record and therefore, we find no reasons to interfere in the judgment and decree of the learned Single Judge dated 5.3.1990 made in C.S. No. 649/79. Hence, the above appeal fails. 21. In the result, the O.S.A. is dismissed. However no costs.