N. G. Nandi,j. ( 1 ) THIS appeal under Section 109 (2) of the Trade and Merchandiseact (hereinafter REFERRED TO to as "the Act") is directed against the order under Section21 of the Act dated 1. 6. 1995, rejecting the opposition to the registration of the trade ( 2 ) THE facts leading to the filing of the present appeal, shortly stated, are thatonkar Bearing Industries and others applied for registration of Trade Mark "mbs"in respect of bearings included in class 7 vide Application No. 428265. The presentappellant Maekawa Bearing Manufacturing Company Limited opposed theregistration sought and filed notice of opposition vide No. DEL-7680 contendingthat they are the registered proprietors in India of the trade mark "mbs" in respectof bearings of all kinds in Classes 7 and 12. The Deputy Registrar of Trade Marksdisallowed the opposition No. DEL-7680 and allowed the registration of the markvide Application No. 428265 in Class 7, further directing the opponents to pay costsof Rs. 105. 00 to the applicants. It is this order, which is sought to be challenged bythe appellant/original opponents in this appeal. ( 3 ) IT is contended by Mr. Chawla, learned Counsel for the appellant that theunsigned vouchers be left out but the other vouchers and the affidavit ought to havebeen considered for the purpose of deciding the opposition; that the appellant is aregistered proprietor of trade mark "mbs" since 1985 and the application for thesame was filed on 11. 4. 1978; that the respondent applied for the registration of themark "mbs" on 10. 4. 1984; that how does the respondent get mark "mbs"; whetherthe adoption of the mark "mbs" can be said to be honest concurrent user. As againstthis it is submitted by Mr. Bhalerao, learned Counsel for the respondent that therespondent has been using the mark "mbs" since 1970 i. e. for over more than 25years. Relying on Sections 12 (3) and 33 of the Act, it is contended that the user ofthe mark "mbs" by the respondent is an honest concurrent and that there is noreason to interfere with the exercise of discretion by respondent No-2. In this regard,reliance is placed on the decision reported in AIR 1981 Calcutta p:53. ( 4 ) SECTION 12 of the Act contains a prohibition of registration of identical ordeceptively similar trade marks. In this regard,reliance is placed on the decision reported in AIR 1981 Calcutta p:53. ( 4 ) SECTION 12 of the Act contains a prohibition of registration of identical ordeceptively similar trade marks. Sub-section (3) thereof provides that "in case ofhonest concurrent use or for other special circumstances which, in the opinion ofthe Registrar, make it proper so to do, he may permit the registration by more thanone proprietor of trade marks which are identical or nearly resemble each other (whether any such trade mark is already registered or not) in respect of the samegoods or description of goods subject to such conditions and limitations, if any, asthe Registrar may think fit to impose". Thus, it will be seen from the above reproduced Sub-sec. (3) of Section 12 ofthe Act that in case of honest concurrent use, if in the opinion of the Registrar, if itis found proper so to do, he may permit the registration by more than oneproprietors of trade marks which are identical or nearly resemble each otherirrespective of the fact whether any such trade mark is already registered or not, inrespect of the same goods or description of goods on conditions and limitations, ifany, thought fit to be imposed by the Registrar. Thus, it is the discretion with theregistrar to permit the registration by more than one proprietor of the trade marks,which are identical or nearly resemble each other irrespective of previous registration of such mark. ( 5 ) IT is found on evidence that the applicants have been using the trade mark "mbs" in respect of manufacturing and selling bearings of all descriptions since1. 4. 1970 and that there has been no complaint from the publicin relation to the goodsunder the rival marks even after the user of the mark by the applicants for over 25 years. In the case of Gopal Hossiery v. The Deputy Registrar of Trade Marks andothers reported in AIR 1981 Calcutta p. 53, relying on the decision reported in AIR 1967 Mad. In the case of Gopal Hossiery v. The Deputy Registrar of Trade Marks andothers reported in AIR 1981 Calcutta p. 53, relying on the decision reported in AIR 1967 Mad. P. 148, it has been held that "where an application for registration of trademark was made by the applicant, and the trade mark was though identical with analready registered trade mark by another proprietor, the claim for registrationbased on honest concurrent user without any interference by the opponent for aperiod of 13 years, the discretion exercised by Registrar under Section 12 (3) inpermitting registration of trade mark applied for was not open to challenge whenthe opponent who objected to the registration of trade mark had in fact taken stepsin the past against other traders who tried to copy his trade mark, had not taken anysteps against the applicant in the period of 13 years". Section 33 of the Act provides that "nothing in this Act shall entitle theproprietor or a registered user of a registered trademark to interfere with or restrainthe use by any person of a trade mark identical with or nearly resembling it inrelation to goods in relation to which that person or a predecessor in title of his hascontinuously used that trade mark from a date prior - (A) to the use of the first-mentioned trade mark in relation to those goodsby the proprietor or a predecessor in title of his; or (b) to the date of registration of the first-mentioned trade mark in respectof those goods in the name of the proprietor or a predecessor in title ofhis;whichever is the earlier, and the Registrar shall not refuse (on such use beingproved) to register the second mentioned trade mark by reason only of theregistration of the first-mentioned trade mark. "even independent of the contention of the appellant/opponent that theappellant has been using the mark "mbs" prior to April, 1978 and that he appliedfor registration on 11. 4. 1978 and has been granted registration on 22. 4. 1985, thediscretion exercised by respondent No. 2 cannot be regarded in any mannerperverse or arbitrary. ( 6 ) IT is suggested that respondent No. ", has been using the mark "mbs" sinceover more than 25 years, not suggested at the same time that he was in the knowof or aware of the mark used by the appellant. 4. 1985, thediscretion exercised by respondent No. 2 cannot be regarded in any mannerperverse or arbitrary. ( 6 ) IT is suggested that respondent No. ", has been using the mark "mbs" sinceover more than 25 years, not suggested at the same time that he was in the knowof or aware of the mark used by the appellant. There is nothing to suggest that theuser of the trade mark "mbs" by respondent No. 1 was not innocent, honest andbona fide nor it is suggested that the origin or the adoption of the mark "mbs" byrespondent No. 1 is tainted and, therefore, respondent No. 2 cannot be said to be notjustified in exercising the discretion by permitting the registration of mark soughtby respondent No. 1 and, therefore, the exercise of discretion under Section 12 (3) ofthe Act cannot be regarded in any manner perverse or arbitrary while rejecting theopposition to the registration of mark "mbs" sought by respondent No. 1. I do notfind any reason calling for the interference in the exercise of discretion under Section12 (3) of the Act by respondent No. 2. ( 7 ) IN the result, the appeal fails.