Judgment :- A.S. VENKATACHALAMOORTHY, J. The above four appeals can be disposed of by a common order. Pending C.S. No. 705 of 1999 on the file of this Court, the appellant/plaintiff filed an application O.A. No. 558 of 1999 in the said suit, praying the Court to grant an order of interim injunction, restraining the respondents, etc. from in any manner infringing the appellant's Trade Marks UNIPLY and UNIBOARD. That application was dismissed and as against that O.S.A. No. 265 of 1999 has been filed. Pending the said suit, the appellant also filed an application O.A. No. 559 of 1999, praying the Court to grant an interim injunction, restraining the respondents and others from in any manner passing-off or enabling others to pass off respondent's goods by use of Trade Marks UNIPLY and UNIBOARD or any mark deceptively similar thereto. That application was dismissed and as against that O.S.A. No. 266 of 1999 has been filed. The respondent filed C.S. No. 804 of 1999 on the file of this Court and pending suit, it filed an application O.A. No. 662 of 1999, praying the Court to restrain the appellant by an order of interim injunction from passing-off their goods as the goods of the respondent by using the Trade Mark UNIPLY and UNIBOARD in the course of business of plywood pending suit and that application was allowed. Against that said order, the appellant has filed the appeal O.S.A. No. 267 of 1999. The respondent also filed an application O.A. No. 663 of 1999 in the said suit, praying the Court to grant an interim injunction, restraining the appellant from passing-off their business as the business of the respondent by using trade name UNIPLY as a part of their corporate name in the course of business of plywood pending suit. That application was allowed and as against the said order, O.S.A. No. 268 of 1999 has been filed.To sum up, the appellant has been restrained by an order of an injunction from passing off their goods as the goods of the respondent by using the Trade Mark UNIPLY and UNIBOARD in the course of business of plywood and from passing off their business as the business of the respondent by using the trade name UNIPLY as a part of their corporate name in the course of the business of plywood. The appellant filed a suit in C.S. No. 705 of 1999 on the file of this Court against the respondents herein, praying for perpetual injunction, restraining the respondents and all others connected to them from in any manner infringing the appellant's Trade Marks UNIPLY and UNIBOARD and for further injunction, restraining the respondents and all others connected to them from in any manner passing-off or enabling others to pass-off respondent's goods as and for the appellant's goods by use of Trade Marks UNIPLY and UNIBOARD or any mark deceptively similar thereto and for other reliefs. Pending the said suit, the appellant also filed two applications viz., O.A. Nos. 558 and 559 of 1999. In application O.A. No. 558 of 1999, the appellant, pending suit prayed for an order of interim injunction, restraining the respondents and others connected to them from in any manner infringing the appellant's Trade Marks UNIPLY and UNIBOARD. In application O.A. No. 559 of 1999, the appellant prayed for an order of interim injunction pending suit, restraining the respondents from in any manner passing-off or enabling others to pass-off respondent's goods as and for the appellant's goods by use of Trade Marks UNIPLY and UNIBOARD or any mark deceptively similar thereto. A common affidavit was filed by the appellant in support of the above said applications viz., O.A. Nos. 558 and 559 of 1999. The case set out in the said affidavit briefly is as follows :The appellant carries on an established and reputed business in all kinds of quality Plywoods, Laminates, Block Boards, etc. and in fact it was established in the year 1996 and has been pioneers in marketing international standard plywood in innovative ways. Apart from this, the appellant also imports world class plywoods, etc. and distribute the same through its offices located in various parts of the country, through its authorised distributors and authorised dealers more than 400 in numbers. The appellant is also the sole selling Agent in India for M/s. Hume Fiberboard Sdn. Bhd., Malaysia, a member of multi billion Hong Laong Group. The appellant's claim is that its quality plywoods, laminates, block boards, MDF Board, etc. are sold under various Trade Marks and all the Trade Marks of the appellant have high reputation amongst the Trade and Public. Trade marks such as UNIPLY, UNIBOARD, UNIWUD, etc. are most popular amongst the Plywood and Block Board. The appellant's claim is that its quality plywoods, laminates, block boards, MDF Board, etc. are sold under various Trade Marks and all the Trade Marks of the appellant have high reputation amongst the Trade and Public. Trade marks such as UNIPLY, UNIBOARD, UNIWUD, etc. are most popular amongst the Plywood and Block Board. The further claim of the appellant is that the Trade Mark UNIPLY is the predominant feature of its corporate name and business style and that the word UNIPLY has become house mark of UNIPLY Group of Companies at present consisting of Uniply Industries Limited, Uniply Veneers Private Limited, Uniply Laminates Private Limited. Uniply Finance and Investments. The appellant is the one amongst the top Tax Payers in the Plywood Industry to the Sales Tax Department and it has paid nearly three crores till 31-3-1999 towards Sales Tax. The Uniply Group of Companies have also contributed to the Central Revenue by paying Income Tax to the tune of rupees fifty eight lakhs which include dividend tax till 31-3-1999. The appellant has its Registered Office in Chennai and Branch Offices in Karnataka and other places. The appellant has also availed of credit facility to the tune of rupees four hundred and fifty lakhs from the State Bank of India and the said Bank has offered such facility only due to the success of the Brand/Trade Marks UNIPLY, UNIBOARD, etc. The appellant has also entered into a memorandum of understanding with Forest Tech Inc., Navada, USA for manufacture of Plywood, Sawn-Timber, Veneer and Block Board products near Chennai at the cost of rupees seventeen crores. The appellant markets shuttering plywood, etc. under the Trade Mark UNIPLY since the year 1996. It has applied for registration of Trade Mark UNIPLY in Class 19 under Application Nos. 730051 dated 14-10-1996 and 795791 dated 23-3-98. The appellant is the Proprietor of Trade Mark UNIBOARD and has been using for its Block Boards, etc. since the year 1996 and it has applied for registration of Trade Marks UNIBOARD in Class 19 under the Application 730053 dated 14-10-1996. The appellant has been selling Plywoods and Boards containing the Trade Marks UNIPLY and UNIBOARD right from the year 1996 all over India. The sales figures of the appellant for the year 1996-97 was Rs. 5, 03, 54, 372.79, Rs. 11, 11, 67, 238.48 during 1997-98, for the year 1998-99 Rs. The appellant has been selling Plywoods and Boards containing the Trade Marks UNIPLY and UNIBOARD right from the year 1996 all over India. The sales figures of the appellant for the year 1996-97 was Rs. 5, 03, 54, 372.79, Rs. 11, 11, 67, 238.48 during 1997-98, for the year 1998-99 Rs. 13, 16, 17228.61 and for the year 1999-2000 is expected to be around rupees twenty four crores. The appellant has also advertised very widely through various media and in fact, for the advertisement alone, the appellant spent Rs. 4, 25, 750/- during 1996-97, Rs. 22, 72, 528.26 during 1997-98 and Rs. 24, 23, 755.02 during 1998-99. The appellant by virtue of long, continuous and extensive use, the Professionals, Trade and Public identify Trade Marks UNIPLY and UNIBOARD exclusively with the appellant alone. In July, 1999, the appellant came to know that the 1st respondent has been marketing Plywood and Boards under the Trade Marks UNIPLY and UNIBOARD. The 1st respondent copied the appellant Trade Mark in toto and has been marketing Plywood and Boards by using the identical Trade Marks UNIPLY and UNIBOARD, selling and distributing the same in the city of Chennai through the 2nd, respondent amongst other places. Use of identical Trade Marks UNIPLY and UNIBOARD in respect of identical products would cause confusion and deception amongst the Trade and Public. The respondents have infringed the appellant's Trade Marks UNIPLY and UNIBOARD. The respondents have committed acts of passing off and are attempting to pass off the respondents UNIPLY and UNIBOARD and for the appellant's Trade Marks UNIPLY and UNIBOARD. The appellant's Trade Marks UNIPLY and UNIBOARD enjoy wide reputation and goodwill amongst the Trade and Public in India and abroad. The respondents' act of marketing and sale of Plywood and Boards under imitative Trade Marks UNIPLY and UNIBOARD has caused and is bound to cause irreparable loss and damages to the reputation and goodwill of the appellant's Trade Marks UNIPLY and UNIBOARD which cannot be compensated in pecuniary terms. According to the appellant, it has established a prima facie case and the balance of convenience in its favour and against the respondents.The respondents herein resisted the said applications on various grounds and filed a common counter-affidavit. According to the appellant, it has established a prima facie case and the balance of convenience in its favour and against the respondents.The respondents herein resisted the said applications on various grounds and filed a common counter-affidavit. The case of the respondents is as under : The manufacturing unit of the 1st respondent's Company was registered as a small-scale industrial unit by the District Industries Centre, Kollam and it adopted at the same time three trade-marks viz., UNIPLY, UNIBOARD and UNIDOOR. The advertisement made in 'Malayala Manorama' and 'Mathruboomi' dated 14-9-93 would show the adoption of the above three trade-marks. The inaugural function was widely published and attended by many dignitaries including the then Minister for Industries of 'Kerala State'. On 30th December 1997, 1st respondent applied before the Registrar of Trade Marks for the registration of the trade-mark UNIPLY with an emblem of one-horn horse and the Application number is 783895 and in the said application, it is specifically mentioned about the user of the trade mark since 16-8-1993. Another application was also filed on 30-12-1997 i.e. No. 783894 for the registration of the trade-mark UNIBOARD along with the emblem as mentioned above and in that application also, about the user of it since 16-8-1993 has been mentioned. The 1st respondent also produced a copy of the cover of the brochure Souvenir of Kerala State Electricity Board Officers' Association 1995, so also a copy of the cover of the Souvenir Brochure of Kerala State Small Scale Industries Association, which contain the advertisements that the 1st respondent is marketing the product under the brand name of UNIPLY and UNIBOARD along with the said emblem. The vouchers, evidencing the sale of plywood and block board since August, 1993 have also been produced. The 1st respondent further contended that the appellant came to be incorporated, long after the commencement of its business that was in September, 1996. In view of the fact that the 1st respondent adopted the trade-marks UNIPLY and UNIBOARD long prior to the date when the appellant claim to have adopted, the appellant has no legal right to file the suit in question. In view of the fact that the 1st respondent adopted the trade-marks UNIPLY and UNIBOARD long prior to the date when the appellant claim to have adopted, the appellant has no legal right to file the suit in question. The respondents by proving the user of the mark in question earlier by three years to the use of the mark by the appellant has established a prima facie case.Within a month from the date of filing the suit C.S. No. 705 of 1999, the 1st respondent filed a suit C.S. No. 804 of 1999 on the file of this Court, praying to grant a decree for permanent injunction, restraining the appellant and others connected with it from manufacturing or marketing or advertising for sale in India or in the course of export trade the expressions Uniply and Uniboard or Uniply Industries Ltd. or any other similar sounding expression in respect of plywoods of all kinds etc. and or goods of similar nature and pass off their business and their goods as the business and or goods of the appellant or enable others to pass off and for other reliefs. Along with the suit, the respondent also filed two applications viz., O.A. Nos. 662 and 663 of 1999. The respondent, in those applications sought for an interim injunction, pending suit to restrain the appellant herein from passing-off their goods as the goods of the respondent by using the trade mark UNIPLY and UNIBOARD in the course of the business of plywood and to restrain the appellant by an order, pending suit from passing-off their business as the business of the respondent by using trade name UNIPLY as a part of their corporate name in the course of business of plywood. The averments made by the respondent as applicant in O.A. Nos. 662 and 663 of 1999 and the averments in the counter-affidavit of the appellant in those two applications are virtually the same as made by respective parties in the other two applications viz., O.A. Nos. 558 and 559 of 1999 in C.S. No. 705 of 1999. Hence, it is unnecessary to repeat them here over again. 662 and 663 of 1999 and the averments in the counter-affidavit of the appellant in those two applications are virtually the same as made by respective parties in the other two applications viz., O.A. Nos. 558 and 559 of 1999 in C.S. No. 705 of 1999. Hence, it is unnecessary to repeat them here over again. The learned single Judge, after considering the materials available on record and the arguments of the respective counsel arrived at the following prima facie findings.(a) The respondent inaugurated the Company as early as September, 1993, whereas, admittedly the appellant's Company was incorporated in the year 1996. (b) There is prima facie material to come to the conclusion that the 1st respondent had been using these trade marks on its products and marketing them since 1993 and the appellant had entered into the trade only in 1996. (c) The 1st respondent's user ever since from 1994 has not been controverted by the appellant or produced any contra material and hence the only conclusion is that the 1st respondent had positively established that they are the prior user of the trade marks in question. (d) In an action for passing off in order to succeed for getting an interim injunction the plaintiff has to establish user of the mark prior in point of time than the impugned user by the defendants. (e) The appellant has no prima facie case and the balance of convenience is not in its favour, whereas the 1st respondent alone has got prima facie case and the balance of convenience is in its favour. Both parties were permitted to file additional documents. The case of the appellant is that it was established in the year 1996 and has been pioneers in marketing international standard plywood, etc. and it markets its products coined the distinctive Trade Marks from the word UNIQUE and PLYWOOD, BOARD and WOOD taking the prefix UNI and respective suffix like PLY, BOARD and WUD. The appellant claims that from its inception adopted and has been using the trade mark UNIPLY, registration of name of the Company with the word UNIPLY forming prime feature, the appellant has acquired exclusive right to use the mark UNIPLY and that they are most popular amongst the Plywood and Wood Product Traders, Architects, etc. The appellant claims that from its inception adopted and has been using the trade mark UNIPLY, registration of name of the Company with the word UNIPLY forming prime feature, the appellant has acquired exclusive right to use the mark UNIPLY and that they are most popular amongst the Plywood and Wood Product Traders, Architects, etc. The turnover of the business rose from rupees five crores in 1996 to thirteen crores in 1999 and for the subsequent year, expected to be around rupees twenty four crores. The appellant also advertised extensively in various medias. The word UNIPLY has become house mark of UNIPLY Group of Companies.The further case of the appellant is that the respondent though inaugurated the factory in 1993, has not commenced production and further never marketed any goods under any brand name and at the most respondent has been only seller of unbranded items and/or affixing the marks of other owners which are popular. The appellant would further contend that the respondent does not have a single documentary proof to state that they have been using Trade Marks UNIPLY and UNIBOARD from any date. Because of the user of the respondent of the trade marks UNIPLY and UNIBOARD, confusion and deception has been caused amongst Trade and Public. In July, 1999, the appellant became aware of the respondent's clandestine user of Trade Marks of UNIPLY and UNIBOARD and the user by the respondent has caused confusion in the minds of all concerned. Earlier to this, the respondent was selling unbranded goods, imitating the appellant's Trade Marks. Alternatively, it is also claimed by appellant that even according to the respondent, it became aware of appellant's user of Trade Marks and there has been no explanation for the absence of any action till the filing of the suit by the respondent and that the respondent has acquiesced in the user of Trade Marks UNIPLY and UNIBOARD by appellant. The respondent would inter alia contend that it was incorporated in the year 1992 and commenced production in the year 1993. The inaugural function was held on 14-9-1993 and in which many dignitaries and important persons participated. Thereafter, according to the respondent, it has been selling its products to the buyers within the State as well as outside the State. The said contention is supported by the official documents such as sales tax proceedings for the various years. The inaugural function was held on 14-9-1993 and in which many dignitaries and important persons participated. Thereafter, according to the respondent, it has been selling its products to the buyers within the State as well as outside the State. The said contention is supported by the official documents such as sales tax proceedings for the various years. Even in the year 1995, it advertised in the various media and the unquestionable documents are, the advertisement in a Souvenir, published by the Kerala State Electricity Board Officers' Association in the year 1995, and in the brochure of Kerala State Small Scale Industries Association, Quilon District, for the year 1995. The respondent would claim that having adopted the trade marks/brand names UNIPLY and UNIBOARD long prior to the date when the appellant claims to have adopted, it is not legally permissible for the appellant to file a suit at all, alleging passing off or infringement. The respondent would claim that, on 30th December 1997, it applied before the Registrar of Trade Marks for the registration of the trade-mark UNIPLY with an emblem of one-horn horse and the Application number is 783895 and in the application the respondent clearly mentioned the user of the trade marks since 16-8-1993. The respondent would further contend that it was in fact prior in adoption and user of the trade marks/brand names UNIPLY and UNIBOARD i.e. right from the year 1993. On the question of acquiescence, it is stated that though in the middle of 1998 the respondent came to know that somebody was also using the trade marks/brand names UNIPLY and UNIBOARD in the course of plywood business, it was not able to locate the Company which was using it immediately and only in July, 1999, it came to know and very soon thereafter the suit came to be filed. Paragraph 18 of the plaint has to be read and understood by reading para 7 of the plaint as well.Broadly speaking, two points arise for consideration : (i) As among the appellant and respondent, who adopted and used the trade marks/brand names UNIPLY and UNIBOARD first ? (ii) If the answer is in favour of the respondent, whether the respondent has acquiescence in the user of trade marks UNIPLY and UNIBOARD by appellant ? Let us proceed to consider the first point. Admittedly, the 1st respondent's Company came to be incorporated on 3-6-1992. (ii) If the answer is in favour of the respondent, whether the respondent has acquiescence in the user of trade marks UNIPLY and UNIBOARD by appellant ? Let us proceed to consider the first point. Admittedly, the 1st respondent's Company came to be incorporated on 3-6-1992. There is no dispute that the respondent inaugurated the Company on 14-9-1993. With regard to inaugural function, the 1st respondent advertised in two Malayalam Dailies viz. Malayala Manorama and Mathruboomi conspicuously. The reading of the same would show that the inauguration was by the then Minister for Industries of State of Kerala. The function was also attended by the concerned District Collector apart from some other dignitaries including Members of the Assembly. The case of the appellant is that apart from the advertisement, nothing happened thereafter and by mere adoption without using the same by marketing the goods with those trade marks/brand names, the respondent would not acquire any right or can claim any right. In fact, the appellant in support of this contention would place reliance on the ruling by the High Court of Justice Chancery Division dated 25th February, 1957, wherein the learned single Judge accepted the ruling in the case of the Registrar in Harold Radford and Coy. and the Austin Motor Coy.'s Application, 1951 68 RPC 221, that advertisement does not constitute user of a word as trade mark. On the other hand, the learned counsel appearing for the respondent would refer to a Division Bench ruling of the Calcutta High Court, reported in (M/s. J. N. Nichols (Vimto) Ltd. v. Rose and Thistle), wherein the Court observed in paragraph 20 as under : "20. Incidentally, it is to be noted that use of the mark does not postulate actual sale of the goods bearing such a mark. Use to my mind can be in any form or way and does not necessarily mean and imply actual physical sale and it is now well settled that even mere advertisement without having even the existence of the goods can be said to be an use of the mark and I need not dilate on this score ........" The necessity to consider and decide this issue/point has not arisen In this case as evident from the discussion and findings in the later part of this judgment. The next question is whether the contention of the appellant in paragraph 3(vii) of the affidavit filed in support of O.A. Nos. 662 and 663 of 1999 that the respondent only advertised the inauguration of the factory, but did not commence production thereafter. The respondent in support of his contention to show that it has been manufacturing and marketing the plywood and board with the trade marks/brand names UNIPLY and UNIBOARD, has produced number of documents. Before referring to those documents, it is necessary to refer to the averments made by the appellant in the affidavit filed in support of the interim application. In paragraph 3f(i), the appellant has stated as under : ".......... In fact the plaintiff had been involved in selling unfinished product which does not carry any brand name or identification mark. The plaintiff M/s. Unicorn Plywoods Limited sold their products mainly as plain and unbranded one and involved in imitating Trade Marks UNIPLY and UNIBOARD of Defendant as and when demand for those brands was made on the reputation established by the Defendant over the said marks." Again, in paragraph 24, it is stated as under : " 24. ..... The plaintiff does not use any Trade Mark on its goods. At the most, the plaintiff is a seller of unbranded items and affix the marks of other owners which are popular."Again, in paragraph 28, it is stated as under : " 28. ...... The plaintiff has been using different type of invoices at different points of time to suit its convenience and avoid tax authorities. The plaintiff has been at the most a seller of unbranded items .........." Again in paragraph 30 of the affidavit, it is stated as under : " 30. The confusion has caused because the plaintiff who has been selling unbranded goods started imitating defendant's Trade Marks ........" The above would show that first of all, the appellant has no consistent and a clear case. The various averments extracted as above from the affidavit filed by the appellant in support of original application would only show that the appellant has in so many places in the said affidavit clearly admitted that the respondent has been manufacturing and selling its products. The various averments extracted as above from the affidavit filed by the appellant in support of original application would only show that the appellant has in so many places in the said affidavit clearly admitted that the respondent has been manufacturing and selling its products. That apart, the respondent has also filed number of invoices/documents, starting from the period December, 1993 to show the sale of commercial Plywood and Block Board to number of dealers/distributors, both within the State of Kerala as well as out side the State. At this juncture, it has to be pointed out that the appellant has not disputed the genuineness of these invoices. To show that the respondent also purchased raw material right from the year 1993 and sold the finished products, we have the documents such as sales tax proceedings from the year 1994 onwards. Furthermore, the respondent has also filed copies of the Balance Sheet for various years before the Registrar of Companies. The said those documents would show the extent of profit, which the respondent got during those years. The respondent has also placed before this Court, Letters/Certificates issued by various dealers, both in this State as well as in the State of Kerala that they have been purchasing plywood and block board from the respondent and they carried the trade marks/brand names UNIPLY and UNIBOARD, right from the year 1994. In the light of these documents, the contention of the appellant that the respondent's Company was only incorporated and that there was only an inaugural function in the year 1993 and it did not produce and market plywood and block board, cannot be accepted.The respondent also produced before this Court :- (i) two copies of declaration filed under Rule 173-B of the Central Excise Rules. (ii) declarations filed pursuant to the trade notice No. 145/95 to prove prima facie that the respondent was manufacturing even prior to 1996 the products. (ii) declarations filed pursuant to the trade notice No. 145/95 to prove prima facie that the respondent was manufacturing even prior to 1996 the products. The counsel for the appellant vehemently contended that there is some overwriting below the signature of the Superintendent of Central Excise correcting the year from 1997 as 1998 under the declarations filed under Rule 173-B. Since the learned counsel also questioned the correctness and genuineness of the certificate issued by the Excise authorities to the effect that the respondent has been manufacturing the products with the trade mark Uniply and Uniboard, we thought it necessary to implead the officials of the Central Excise Department, Kollam, Kerala State. We also directed the Excise authorities to produce the original files pertaining to the issuance of the certificate by the Department to the effect that the respondent has been manufacturing and marketing the products with the trade name Uniply and Uniboard so as to enable us to satisfy the correctness/genuineness or otherwise of the documents mentioned supra. The originals of the copies of the declarations filed under Rule 173-B by the respondent mentioning the trade mark Uniply and Uniboard are not available in the files produced by the Excise Department. However, solely for that reason we do not propose to infer that the respondent did not manufacture prior to 1996. This is because we have not summoned the other files from the Department and further from the two files produced by the Central Excise Department we find that the respondent had filed declarations pursuant to the notification No. 145/95. In fact one such declaration has been filed by the respondent in this case. We are satisfied from the documents produced by the respondent that it has been manufacturing the products at least from the beginning of 1994.The learned counsel for the appellant then drew our attention to the balance sheet filed by the respondent wherein the electricity consumption charges paid by the Company had been mentioned as only about Rs. 2, 000/- to 3, 000/- or so per month and submitted that from this it would be evident that the respondent did not manufacture any product and it only formally inaugurated the Company. 2, 000/- to 3, 000/- or so per month and submitted that from this it would be evident that the respondent did not manufacture any product and it only formally inaugurated the Company. In the face of the documents produced by the respondent, viz., - (i) Sales tax assessment orders showing purchase of raw materials to the tune of few lakhs and also sales; and (ii) the declaration filed by the respondent pursuant to the trade notification No. 145/95 : We are not inclined to accept this submission. We hold that the respondent has been manufacturing and marketing its products since 1993. The next question that is to be considered is as to whether the respondent has been selling its products with the trade marks/brand names UNIPLY and UNBOARD. As already mentioned, the inaugural function was held on 14-9-1993 at Kollam in Kerala State. This was conspicuously advertised in two Malayalam Dailies. The said advertisement mentions the brand names in bold letters viz. UNIPLY, UNIBOARD and UNIDOOR. In the year 1995, a brochure was released by the Kerala State Electricity Board Officers' Association, Thiruvananthapuram. In that brochure, the respondent gave an advertisement, the text is to the effect that UNIBOARD and UNIPLY are manufactured by the respondent. The words UNIBOARD and UNIPLY are printed in bold letters. Similarly a brochure was released by the Kerala State Small Scale Industries Association in 1995. There again, for the respondent's company, an advertisement was given and the words UNIPLY and UNIBOARD were printed in bold letters. Now, this we are mentioning to point out even, in the year 1993, the respondent has decided to market the products with the trade marks/brand names UNIPLY and UNIBOARD. Having so decided, the normal course of conduct would be to use it and not to market the products in some other brand name or without any Trade Marks as claimed by appellant. In this context, it has to be remembered that the appellant came into existence only in the year 1996. At this juncture, it has to be pointed out that the respondent has produced two documents viz., a bill issued by a Screen Printing concern by name V.T. Screens of Kollam dated 5-11-1993, evidencing payment by the respondent to that firm to the extent of Rs. 4, 270/-. At this juncture, it has to be pointed out that the respondent has produced two documents viz., a bill issued by a Screen Printing concern by name V.T. Screens of Kollam dated 5-11-1993, evidencing payment by the respondent to that firm to the extent of Rs. 4, 270/-. The said firm V.T. Screens has also issued a certificate to that effect that they supplied self adhesive PVC Stickers displaying trade mark Uniply for Commercial Plywood and trade mark Uniboard for Commercial Block Board and along with the certificate, it has also furnished two samples of the said stickers. The learned counsel for the appellant would contend that these documents cannot be relied on since the bill dated 15-11-1993 issued by V.T. Screens to the respondent does not mention the brand names in question viz., Uniply and Uniboard. At this stage, for the purpose of disposing the above appeals, we are not inclined to accept the said submissions made by the learned counsel for the appellant and we reject his submission. We would like to point out that the position may be different and/or may be in favour of the appellant, if the respondent's Company which was inaugurated during the year 1993 had not mentioned the trade marks/brand names viz., Uniply and Uniboard in the advertisements given by it at the time of inauguration in 1993 or in the two Souvenirs released by those two Bodies in 1995. Or in other words inasmuch as the advertisements given by the respondent in two Malayalam Dailies in the year 1993 as well as the advertisements in the two Souvenirs, clearly mentioned the trade marks/brand names, the normal conduct of the respondent would be to use the same when marketing its products. Similarly it is not the case of the appellant that in those years the respondent was marketing its products with some particular trade marks/brand names. The appellant has not placed any material to show that in spite of the fact that the respondent made known to everyone its trade marks/brand names even in the year 1993 and thereafter in the year 1995 did not use the same till the appellant started using the same. The appellant has not placed any material to show that in spite of the fact that the respondent made known to everyone its trade marks/brand names even in the year 1993 and thereafter in the year 1995 did not use the same till the appellant started using the same. Of course, the learned counsel for the appellant in this regard would place strong reliance on the various invoices and submitted that the respondent even assuming has decided about the trade marks/brand names in the year 1993 itself, did not give effect to it and with the result, there was no user of the trade marks/brand names. We are not impressed by this argument for the following reasons.Firstly, the various invoices, particularly up to 5-5-1999, the 2nd column therein reads as "Particulars" only. Thereafter, the invoices for the subsequent period, the 2nd column therein reads as "Particulars and Brand Name". So, prior to 5-5-1999, the fact that the brand name was not mentioned in the invoice would not to lead any inference or in other words, it would not indicate that the respondent marketed its products not under the brand names of UNIPLY or UNIBOARD. Secondly, admittedly, the respondent has been manufacturing only one quality in Plywood and one quality in Block Board. That being so, there was no difficulty for either the respondent or its purchaser to identify the quality which would necessitate the respondent, mentioning the brand name. The respondent has been manufacturing only one quality of plywood with different sizes/thickness and one quality of Block Board with different sizes/thickness. Thirdly, as already mentioned the respondent has produced letters/certificates from number of dealers (at least from ten dealers) both in Kerala State and Tamilnadu State that they have been purchasing the Plywood and Block Board with Trade Marks Uniply and Uniboard from the respondent. The counsel for the appellant submitted that those documents cannot be relied on and in fact two or three dealers given certificate contra to that subsequently. We are inclined to accept these certificates filed by respondents at this stage for the limited purpose of deciding these appeals arising out of interim orders. The counsel for the appellant submitted that those documents cannot be relied on and in fact two or three dealers given certificate contra to that subsequently. We are inclined to accept these certificates filed by respondents at this stage for the limited purpose of deciding these appeals arising out of interim orders. For the foregoing reasons, we come to the conclusion that the respondent started manufacturing its products in December, 1993 and has been selling the same to various parties both within the State and outside the State with the trade marks/brand names UNIPLY and UNIBOARD and it was prior in point of adoption and user of the said trade marks when compared to the appellant i.e. even right from the year 1993.Learned counsel for the appellant would contend that the turnover of the appellant runs to several crores of rupees and there has been steady increase year after year and that apart it is also spending for advertisement, etc. in various media. According to him, the respondent's Company is not spending anything for advertisement and the turnover is much less, in fact rather negligible. We are not impressed by this argument. Prima facie, we are inclined to agree with the law laid down by the High Court of Delhi in Century Traders v. Roshan Lal Duggar and Co., 1978 AIR(Delhi) 250, which in turn endorsed the correctness of ruling in Consolidated Foods Corporation v. Brandon and Co. Private Ltd. The legal position is laid down as under : "A trader acquires a right of property, in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade. The trader who adopts such a mark is entitled to protection directly the article having assumed a vendible character is launched upon the market .........." The next question is, whether whatever right the respondent has acquired, it has acquiesced by permitting the appellant to use the trade marks/brand names UNIPLY and UNIBOARD. First, let us refer to the pleading on this question in the affidavit filed in support of the application. The appellant has stated that the plaintiff is guilty of inordinate delay and laches in filing the suit and he has not come forward with explanation for such delay. First, let us refer to the pleading on this question in the affidavit filed in support of the application. The appellant has stated that the plaintiff is guilty of inordinate delay and laches in filing the suit and he has not come forward with explanation for such delay. It is also contended that according to the respondent, it came to know of the appellant's user of trade marks in question even in the middle of 1998 and consequently, it has to be taken that the respondent has acquiesced in the using of trade marks UNIPLY and UNIBOARD by the appellant.To support a plea of acquiescence it must be shown that the party, who claims a right, has stood by for a substantial period and thus encouraged the other party to do something and in a case of this nature to expend money in building up business associated with the mark. Or in other words if a party (plaintiff), who seeks relief really does stand by and allow a man/person (defendant) to carry on the business in the manner complained of to expend money and to acquire reputation he cannot then after a long lapse of time, turn round and say that the business ought to be stopped. Two things are to be satisfied by a party, who claims acquiescence by the other party : (i) The plaintiff was aware about the user of the trade mark by the defendant. (ii) The plaintiff stood by for a substantial period and thus encouraged the defendant to expend the money in building up a business associated with the mark. But, however, as laid down in Rowland v. Michell, 1987 14 RPC 37 at p. 43, each case to be considered on its own facts whether in that particular case one party (plaintiff), who claims certain rights or reliefs, even with knowledge kept quiet and allowed the other party to carry on business in the manner complained of to acquire a reputation and to expend money. Coming to the present case, nowhere the appellant has pleaded in the plaint or in the affidavit filed in support of the application that the respondent was aware about the user of the trade marks/brand names by the appellant or that it has been stated that the appellant advertised extensively through various media and the respondent would certainly had knowledge of appellant's user. To analyse further, it could be seen that such advertisements were made only in Tamil Newspapers and in a Private Tamil Television Channel. Of course, one advertisement in the English Daily viz., "The Hindu", has been produced. But, it is not known whether such advertisement was also in the said paper circulated in the Kollam District i.e. place of publication and area of circulation. There is one advertisement in the Malayalam Daily viz., "Malayala Manorama" in the classified advertisements under the heading "Furniture". The advertisement reads as under :"FOR ALL REASONS AND SEASONS Uniply Phone-0495-302098" From this, certainly, it is not made known that some third party at the relevant date manufacturing or marketing plywoods or block boards under the brand name of UNIPLY. It would only give an impression that some furnitures are being sold with the trade mark UNIPLY. The respondent is in Kollam i.e. in Kerala State. The wide advertisements, etc. claimed by the appellant cannot drive us to an irresistible conclusion that it should have reached the respondent as well. Consequently, we have to hold that the respondent had no knowledge about the user of the trade marks UNIPLY and UNIBOARD by the appellant. The next question is, whether there was inaction on the part of the respondent or inordinate delay in taking legal action against the appellant. The contention of the appellant is that the respondent came to know of the user of the trade marks UNIPLY and UNIBOARD by the appellant even in the middle of 1998, nevertheless, it had kept quiet for one year and only thereafter instituted the legal proceedings. In this regard, the appellant would refer to the paragraph 18 of the plaint filed in C.S. No. 804 of 1999. True, in the plaint, it is stated that the cause of action of the suit arose in Chennai from the middle of 1998 when the plaintiff came to know of the defendant's use of the two trademarks UNIPLY and UNIBOARD. But, what exactly conveyed by the said statement has to be understood by reading the rest of the plaint, particularly, paragraph 7 of the said plaint. But, what exactly conveyed by the said statement has to be understood by reading the rest of the plaint, particularly, paragraph 7 of the said plaint. In paragraph 7, it is clearly stated that the respondent was receiving intimation that some other had been using two of its trade marks viz., UNIPLY and UNIBOARD in the course of plywood business and the respondent instructed its men to ascertain the same, but they were unable to secure the name of the manufacturer and only somewhere in July, 1999, they came to know that such user was none else than by the appellant. That being so, it cannot be said that the respondent even though came to know in the middle of 1998, kept quiet and allowed the appellant to expend money in building up its business and because of which, the respondent cannot now seek the relief of interim injunction.In fact, the learned counsel appearing for the appellant would place reliance on two rulings viz., (Amritdhara Pharmacy v. Satya Deo) and contend that the respondent is not entitled to seek for any interim relief on the ground of acquiescence. Facts of the said case would show that in that case, the user by the other party defendant was for a long period i.e. from 1923 to 1949 and the plaintiff in that case was also aware about such user. Knowledge was imputed because both the parties advertised in the same magazine. That being so, that decision would not help the appellant. The next ruling one is reported in 1994 2 Mad LW 510 (Modern Food Products v. Ushodaya Enterprises Limited). Again, the said decision would not be of any assistance to the appellant to support its case and it is suffice for us to quote para 65 of the said ruling, which reads thus : "65. Present action has also be characterised as one brought with the object of causing injury to the defendant and not for the purpose of bona fide protecting the plaintiff's proprietary rights, thus disentitling the plaintiff to the interlocutory and discretionary relief of interim injunction. Present action has also be characterised as one brought with the object of causing injury to the defendant and not for the purpose of bona fide protecting the plaintiff's proprietary rights, thus disentitling the plaintiff to the interlocutory and discretionary relief of interim injunction. The plaintiff having acquiesced in the use of the mark by the defendant with full knowledge of such use the plaintiff himself claiming to be an honest and concurrent user of the mark when the defendant objected to the registration of the mark and having also acted on the basis that defendant was the prior user and by having refrained from bringing any action against the defendant for over fourteen years, has now chosen to initiate this action through the wife of Vasudevan, the disgruntled former agent of the defendant in U.S.A. after Vasudevan failed in his attempts to register the mark in his own name in U.S.A. and also failed in his attempt to compel the defendant to export its products to USA only through him, the object of the action being the take over of the large domestic market as also export market developed by the defendant particularly in the U.S.A." The above passage would show that in that case the plaintiff had knowledge and he permitted the defendant to use it for a very long period. The said ruling would not apply to the facts of this case. We have carefully examined the various reasonings given by the learned single Judge and we are convinced that the same cannot be said to be arbitrary or capricious or perverse. Once we come to the conclusion then we rely on the ruling of the Supreme Court in Wander Ltd. v. Antox India (P) Ltd., 1990 (2) Arbi LR 399, Supreme Court Pg. 215, Chadda's book on Supreme Court Cases of Trade Marks. In paragraph 9 of the said ruling, it has been laid down as under : "9. The appeals before the Division Bench were against the exercise of discretion by the single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by the Court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion. After referring to these principles Gajendragadkar, J. In Printers (Mysore) Private Ltd. v. Potham Joseph said :" ..... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Johnston the law as to the reversal by a Court of appeal of an order made by a Judge below in the exercise of his discretion is well established, and any difficulty that arises is due to only to the application of well settled principles in an individual case." In the light of the above discussion and findings we reject all the contentions of the appellant. There are no merits in these appeals and the same are dismissed. However, there will be no order as to costs. Connected C.M.Ps. are also dismissed. After pronouncement of the order, learned counsel for the appellant requests that the order passed in these appeals may be suspended for a period of three weeks. There are no merits in these appeals and the same are dismissed. However, there will be no order as to costs. Connected C.M.Ps. are also dismissed. After pronouncement of the order, learned counsel for the appellant requests that the order passed in these appeals may be suspended for a period of three weeks. Normally, we would not entertain such a request as we have only confirmed the order passed by the learned single Judge, however, in view of the fact that the Supreme Court will be closed for 'Deepavali Vacation' till 6th November, 2000 and that there was also an interim order in favour of the appellant, pending appeal, we are inclined to grant suspension of this order for a period of three weeks (i.e.) till and inclusive of 6-11-2000.