Judgment :- M. Karpagavinayagam, J. 1. M/s. Prestige Housewares (India) Limited and TTK Prestige Limited, Banglore are the petitioners herein. They have filed this petition in O.P. No. 401 of 1995 for Rectification of the Register for removal of Trade Mark under Sections 11, 18, 32, 46 and 56 read with Sections 107 and 108 of the Trade and Merchandise Marks Act, 1958 seeking the said relief as against the respondents 1 to 5. 2. The case of the petitioners is as follows:- "(a) The first petitioner is the proprietor of the trade mark 'Prestige' registered in 1949 in class 21 in respect of non-electric cooking and kitchen utensils. The second petitioner is the proprietor of the trade mark 'Prestige' registered in 1981 in class 11 in respect of installation for heating, cooking, refrigerating and dying purposes included in class 11. (b) The respondents are the proprietors of the trade mark 'Prestige' registered in class 24 in respect of textile piece goods for sale. The respondents claiming to be the proprietors of the trade mark 'Prestige' issued a copy right and trade mark warning notice. (c) The petitioners belong to the famous TTK Group of Companies. One of the member companies of the Group namely TTK Textile Limited deal in textile piece goods. The petitioners have intention to use the trade mark 'Prestige' either by themselves or through their licensees in respect of textile piece goods. (d) Registration in class 24 in the name of the respondents in respect of textile goods would be a hindrance to such intended use by the petitioners. The use of an identical trade mark 'Prestige' by the respondents is bound to cause confusion and deception amongst the trade and public. The registration of the said trade mark 'Prestige' in the name of the respondents was obtained by misrepresentation, fraud and suppression of material facts. (e) Hence, the petitioners have come forward with this petition requesting this Court to expunge the trade mark 'Prestige' registered in class 24 in the name of the respondents by giving a suitable direction to the Registrar of Trade Marks and declare that the said registration is no longer valid." 3. The case of the respondents as projected in their counter is as follows:- (a) The respondents 1 to 5 are partnership firms which belong to the 'Prestige Group'. The case of the respondents as projected in their counter is as follows:- (a) The respondents 1 to 5 are partnership firms which belong to the 'Prestige Group'. First respondent has been carrying on business in textile piece goods, trading in the name and style 'Prestige' since 1950 in Bangalore for over four decades. (b) The four partners of the first respondent trading as 'Prestige' registered the trade mark 'Prestige' bearing No. 365586 in class 24 in the year 1980 in respect of textile piece goods for sale in the States of Andhra Pradesh, Karnataka, Kerala and Tamil Nadu. It had been renewed from time to time and is currently valid upto 1.9.2001. The fifth respondent belonging to 'Prestige Group' does business in real estate and property development. (c) The petitioners had only two registrations in class 21 and class 11 only in Part B. The petitioners have no exclusive copyright over the mark 'Prestige'. The Prestige Group, of which the respondents 1 to 5 are components, is only interested in protecting their statutory and lawful rights with respect to the trade mark 'Prestige' registered in class 24 and the copyright in 'Prestige' and 'Prestige Group'. (d) While first respondent deals in textile goods, fifth respondent is only engaged in real estate and property development business. Neither first respondent nor fifth respondent nor any other constituent of the Prestige Group trade or deal in any of the goods falling in class 21 or 11. (e) Thus, the petitioners or any other company of the TTK Group have no right to use the trade mark 'Prestige' in respect of textile goods in class 24. It is clear that the petitioners are not in the same business as the respondents. Hence, the petitioners are not aggrieved persons. (f) The petitioners claim that they have an intention to use the mark 'Prestige' at some unknown future date for textile piece goods, is not tenable in law. Petitioners became the subsequent proprietors of the mark 'Prestige' for pressure cookers, pressure pans, etc. being goods in class 21 in 1985, long after the 1st respondent had adopted the trade mark 'Prestige'. (g) There is absolutely no commonality of business activity between the petitioners and the respondents. Therefore, the Original petition for rectification is ab initio mala fide and the same deserves to be dismissed. 4. being goods in class 21 in 1985, long after the 1st respondent had adopted the trade mark 'Prestige'. (g) There is absolutely no commonality of business activity between the petitioners and the respondents. Therefore, the Original petition for rectification is ab initio mala fide and the same deserves to be dismissed. 4. When the main petition was taken up for final disposal on 4.1.2000, Mr.Mohan, the learned counsel appearing for the petitioners would represent that there is an amendment of the Act by which these cases to be dealt with only by Appellate Tribunal and that therefore, the petition may be adjourned till the constitution of the said Appellate Tribunal under the Act. 5. On the other hand, Mr.Sharma, the learned counsel for the respondents would submit that it would take some years for the constitution of the said Tribunal, in view of the fact that the Act could be implemented only after framing the rules and following the other procedures which has long run. 6. However, Mr. Sharma would point out that he has raised preliminary question with regard to the maintainability of the petition stating that the petitioners are not the aggrieved persons and that therefore, the petition is not sustainable under law and that let the said question be first decided by this Court. The learned counsel for the petitioners also would agree for making arguments with reference to the said preliminary question. 7. Under those circumstances, as agreed by the counsel for the parties, the matter was posted on 18.1.2000 for hearing the arguments of the counsel for the parties for deciding the preliminary point raised in this case as mentioned above. Accordingly, the counsel for the parties would argue at length on this point on the adjourned dates. 8. Both the counsel in support of their respective pleas with regard to the maintainability of the petition, cited several authorities. 9. The gist of the arguments of the counsel for the petitioners is as follows:- "The first petitioner is the proprietor of the trade mark 'Prestige' registered under No. 141602 in class 21 in respect of non-electric cooking and kitchen utensils and the second petitioner is the proprietor of the trade mark 'Prestige' registered under No. 3771588 in class 11 in respect of installation for heating, cooking, refrigerating and drying purposes. The petitioners have intention to use the trade mark 'Prestige' either by themselves or through their licensees in respect of textile piece goods. The respondents obtained Registration No. 365586 in class 24 in respect of textile goods for the trade mark 'Prestige' by fraud and misrepresentation, as though they have been carrying on business in textile piece goods, etc., in Bangalore. The petitioners belong to the famous TTK Group of Companies. TTK Textiles Limited, a member of TTK Group deals in textile piece goods. If the trade mark 'Prestige' registered in class 24 by the respondents is allowed to be on the register, it would hamper the interest of the petitioners who have intention to use the trade mark 'Prestige' in the future. Thus, the petitioners become aggrieved and consequently, they are entitled to maintain the petition. 10. On the other hand, the learned counsel appearing for the respondents would submit the following:-" Section 46 of the Act would specifically provide that the application could be filed for removal of the registered trade mark from register only by the person aggrieved. Admittedly, the petitioners have not been using the trade mark 'Prestige' in respect of textile goods. On the other hand, the respondents have been using the same for four decades. They also got registered in the year 1980 the trade mark 'Prestige' in respect of textile goods in class 24. The intention to use would not give rise to a cause of action for the petitioners to file a petition against those who have actually used the trade mark for a long number of years in respect of textile piece goods and the same was registered. Moreover, the trade mark of the petitioners in respect of the particular business is entirely different from the trade mark of the respondents who deal with the textile goods. Moreover, they have filed affidavit and documents to show that they are the manufacturers of the textile goods and dealing in the sales to various parties continuously for a long number of years and as such, it cannot be contended that the registration of the trade mark was obtained by the respondents by fraud and misrepresentation. "11. While dealing with the preliminary issue, it is important to quote the relevant Sections of the Act. 12. "11. While dealing with the preliminary issue, it is important to quote the relevant Sections of the Act. 12. Section 46 of the Trade and Merchandise Marks Act, 1958 reads as follows:-" 46 Removal from register and imposition of limitations on ground of non-use. --(1) Subject to the provisions of Section 47, a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the ground either -- (a) that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him, or in a case to which the provisions of Sec.45 apply, by the company concerned, and that there has, in fact, been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for the time being up to a date one month before the date of the application; or (b) that up to a date one month before the date of the application, a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being." 13. A" trade mark "as defined in Section 2(v) means, a registered trade mark or a mark used in relation to goods for the purpose of indication or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark. 14. The registration of a trade mark in Part A or Part B of the register shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark. 15. Therefore, once a person gets a particular style registered as his trade mark, he gets exclusive right to the use of the trade mark in relation to the goods in respect of which it has been registered. 16. 15. Therefore, once a person gets a particular style registered as his trade mark, he gets exclusive right to the use of the trade mark in relation to the goods in respect of which it has been registered. 16. Under Section 46 which provides for removal from register and imposition of limitations on the ground of non-use, it is open to an aggrieved person to have the trade mark of any person who has registered it removed from the register on the ground mentioned in clauses (a) and (b) of sub-section (1) of that Section. 17. The two factors constituting that ground are: (1) that the trade mark was registered without any bona fide intention on the part of 'the applicant for registration that it should be used in relation to those goods by him; and (2) that there has been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for the time being upto a date one month before the date of the application. 18. The first aspect is a mental factor, the bona fide intention to use the goods covered by the trade mark, and the other relates to factual user of such goods covered by the trade mark registered. Therefore, in order to maintain this petition, the petitioner should show (1) that he is an aggrieved person ; and (2) that the ground under clause (a) or (b) of Section 46(1) exists. 19. The contention of the learned counsel for the petitioners is that the registration of the trade mark was obtained by the respondents by fraud and misrepresentation, as if they are the manufacturers of the textile goods and they have been carrying on the business in Bangalore. 20. As against this submission, the learned counsel for the respondents, by pointing out the relevant portions of the counter affidavit, would state that the respondents have been carrying on the sale of the textile goods from 1950 at Commercial Street, Bangalore for over four decades and in 1980 on the basis of the production of the relevant documents to the registering authorities, they obtained registration in class 24 in respect of the sale of textile goods and as such, there is no misrepresentation. 21. 21. Along with the counter, the respondents filed a typed set in which the documents relating to the manufacture and running of the business and the copies of the bills and invoices for different dates from 1958 to 1996 are given in page numbers 11 to 58. 22. Prima facie, these documents would show that the respondents had not only the showroom but also they are manufacturers of textiles and selling the same with the trade mark 'Prestige' to various customers. Therefore, I am not able to accept the contention of the learned counsel for the petitioners that there is a ground made out in clause (a) or (b) of Section 46(1) to hold in favour of the petitioners on the available materials, especially when the genuineness of these documents has not been challenged by the petitioners. 23. However, in order to decide the preliminary issue, whether the petitioners are aggrieved persons or not, we need not deep delve into other aspects. The only question before this Court is whether the petitioners are aggrieved persons? 24. Only when that question is established, the other issues relating to the ingredients contained in clause (a) or (b) of Section 46(1) would arise. Therefore, let us now see whether the petitioners have established on the available documents that they are the aggrieved persons, so as to maintain this petition. 25. As stated earlier, the counsel for both would cite several authorities on this point. Let us see one by one. 26. The authorities (English) cited by Mr.Mohan, the counsel for the petitioners, are as follows. 27. In Wright, Crossley and Co. S.T.M., (1898 (15) R.P.C. 131), it was held as follows:-" I further accept the statement of the Court of Appeal, that a man in the same trade as the one who had wrongfully registered a Trade Mark and who desires to deal in the article in question is prima facie an aggrieved person--but only prima facie; and the circumstances of the case may show that an individual applicant is not a person aggrieved. I think, notwithstanding what was said in that case, and has been said in other cases dealing with Trade Marks, that an applicant, in order to show that he is a person aggrieved, must show that in some possible way he may be damaged or injured if the Trade Mark is allowed to stand and by possible I mean possible in a practical sense; and not merely in a fantastic view. "28. In Paine and Co. v. Daniell and Sons' Breweries Ltd., (1893 (10) R.P.C.217), it was held thus:-" The purity of the register of trade mark--if one may use the expression-- is of much importance to trade in general; quite apart from the merits or demerits of particular litigants. If on a motion like the present the attention of the court is called to an entry on the register of a trade mark, which cannot in law be justified as a trade mark, it seems to me that the court's duty may well be--whatever the demerits of the applicant-- to purify the register and to expunge the illegal entry in the interests of trade, as was done in the Stone Ales case. As a rule, the court on being seized of the matter would doubtless put an end to the existence of a trade mark which could not possibly be justified by law. "29. In Powell v. Birmingham Vinegar Brewery Co., (1893 (10) R.P.C.63), it was observed as under:-" Persons who are aggrieved are persons who are in some way or other substantially interested in having the mark removed from the register, or persons who would be substantially damaged if the mark remained. It is very difficult to frame a nearer definition than that. In the Apollinaris case it was pointed out not as a complete or exhaustive definition that people would be aggrieved if they were in the same trade and dealt in the same article. To my mind, it is equally true that persons would be aggrieved if they are in the same trade, and might reasonably be expected to deal in the same article, though not prepared to prove at the moment that they had formed a clear determination to do so. To my mind, it is equally true that persons would be aggrieved if they are in the same trade, and might reasonably be expected to deal in the same article, though not prepared to prove at the moment that they had formed a clear determination to do so. Supposing that this mark ought not to be on the register, it hampers those who are in the trade and who might wish to consider the question of embarking in another branch of the trade if lawfully entitled to do so. It would be, to my mind, an unbusiness like construction to place on the term "aggrieved", to say that it could only be applicable to those who actually had formed a fixed and crystallized intention of dealing in the particular article if permitted to do so. If a man is hampered in his arrangements of business matters in the future by the fact that a trade mark is on the register which ought not to be there, he is a person who, to my mind, is sufficiently aggrieved to come within the Section. "30. The decisions cited by Mr.Sharma, the learned counsel for the respondents are as follows. 31. In Jadayappa Mudaliar v. Venkatachalam, 1990 (2) MLJ 423 ), this Court would observe thus:-" In order to show that he is a person aggrieved, the petitioner must establish in a practical sense that he may be damaged or injured if the Trade Mark is allowed to stand. He is not an aggrieved person or a person substantially interested in having the mark removed from the register. The petitioner has not proved what is his substantial interest in having the mark removed nor has he made out a case that he is substantially damaged by the respondent's registered mark remaining on the register. The petitioner has his own mark as stated by him in Ex.R.45 and he could now may be prejudiced by the respondent's mark remaining on the register. Hence I hold that the petitioner is not an aggrieved person as per the year sticks adopted by the various rulings and passages referred to above and hence could not sustain this petition for rectification, and could not be granted the prayers asked for. "32. In Toshniwal Instruments Madras v. Toshniwal Bros. Hence I hold that the petitioner is not an aggrieved person as per the year sticks adopted by the various rulings and passages referred to above and hence could not sustain this petition for rectification, and could not be granted the prayers asked for. "32. In Toshniwal Instruments Madras v. Toshniwal Bros. Pvt. Ltd. Bombay and Another, (T.M.A. 5 of 1990, decided on 13.9.1991), this Court would hold as follows:-" An application for registration challenging the opposition by a person who has been the registered proprietor of the same trade mark for 20 years cannot be said to be a person aggrieved. A person acquiescing in the registration of the trade mark cannot now seek rectification on the ground that registration was not for bona fide use, especially when it is proved by evidence on record that there has been continuous use of the trade mark by the registered proprietor since its registration. "33. Agha Hyder v. Omar Khayyam Wineries, 1977 AIR(Madras) 166, this Court would hold thus:-" But so far as the goods covered by class 32 of that schedule are concerned, we are of the opinion that the respondent cannot be regarded as a person aggrieved. This is because it is not engaged in manufacturing or using of the goods covered by class 32 in the Fourth Schedule to the rules under the Act. The policy behind Section 46(1) (a) is that in connection with dealing in the same kinds of goods, the person hit by clause (a) should not be regarded as a person aggrieved. This is for the obvious reason that such a person has nothing to do with such goods as in the case of the respondent here. "34. The learned counsel for the respondents also drew my attention to paragraph 860 of Narayan's Trade Marks and Passing Off, wherein it is stated that the persons whose trading interests are affected alone are aggrieved persons. 35. The reading of the above decisions cited by both the counsel and Narayan's Trade Marks and Passing Off book would show that expression "persons aggrieved" has been construed liberally by English Courts while dealing with the corresponding provisions under the English Acts. 36. 35. The reading of the above decisions cited by both the counsel and Narayan's Trade Marks and Passing Off book would show that expression "persons aggrieved" has been construed liberally by English Courts while dealing with the corresponding provisions under the English Acts. 36. But, I could see one common thread in these decisions that the persons who are aggrieved are persons who are in some way or other substantially interested in having the mark removed from the register, or persons who would be substantially damaged if the mark remained. 37. Whenever it is shown that the applicant is in the same trade as the person who has registered the trade mark, and wherever the trade mark, if remaining on the register would limit the legal rights of the applicant, so that by reason of the existence of the entry on the register he could not lawfully do that which, but for the existence of the mark upon the register, he could lawfully do, he has a locus standi to be heard as a person aggrieved. 38. The person aggrieved must manufacture or deal in the same class of goods to which the registered mark applies. There shall be a reasonable probability of his finding occasion to use it. When there is a material that the trader deals in the same class of goods, and could use the impugned mark, it would be, prima facie, evidence of his being aggrieved. 39." * Every person who will in reasonable probability suffer any injury or loss from the other persons claiming to use it "is a person aggrieved. Common informers or persons who are actuated by merely sentimental motives are not persons aggrieved. 40. A person who had not suffered or was not likely to suffer damage to his reputation or any other damage by reason of the registration sought to be removed is not considered a person aggrieved. 41. An applicant for rectification cannot be a person aggrieved in respect of goods within the registered proprietors' registration, which are not the same or at least of the same description as though in which he is either already engaged in trade or has an intention to use the mark which is a pre-requisite for his own application for registration. 42. An applicant for rectification cannot be a person aggrieved in respect of goods within the registered proprietors' registration, which are not the same or at least of the same description as though in which he is either already engaged in trade or has an intention to use the mark which is a pre-requisite for his own application for registration. 42. The onus of establishing which goods or of the same description as though in which he is interested lies on the application for rectification. The mere fact of making an application for registration of a trade mark will not confer a locus on an applicant for rectification and it is necessary to look into the relevant business activities of the applicant and his intentions. 43. The locus standi of an applicant is an essential preliminary qualification which has to be tested prima facie upon the assumption that the facts alleged as the basis of the locus are true, although these facts are challengeable during the course of the proceedings. 44. In the light of the settled principles indicated above, the relevant factors to be taken note of to decide about the preliminary question, could be summarised as hereunder:-" (1) The petitioners are the proprietors of the trade mark 'Prestige' in classes 21 and 11 in Part 'B'. These classes deal with the non-electric cooking and kitchen utensils, refrigerating, etc. The respondents are the proprietors of the trade mark 'Prestige' registered in class 24 in respect of textile piece goods for sale. The first petitioner registered his trade mark in 1949 in class 21 and the second petitioner registered the trade mark 'Prestige' in the year 1981 in class 11. The respondents registered the trade mark 'Prestige' in class 24 in the year 1980. Admittedly, the petitioners are not the proprietors of the trade mark registered in class 24 in respect of textile piece goods for sale, whereas the respondents are the proprietors of the same. (2) According to the respondents, they have been carrying on the sale of the textile goods from 1950 at Bangalore by using the name 'Prestige' for over four decades. In 1980 on the basis of the production of the relevant documents to the registering authorities, they obtained registration in class 24 in respect of sale of textile goods. (2) According to the respondents, they have been carrying on the sale of the textile goods from 1950 at Bangalore by using the name 'Prestige' for over four decades. In 1980 on the basis of the production of the relevant documents to the registering authorities, they obtained registration in class 24 in respect of sale of textile goods. The documents including the copies of the bills filed by the respondents would show that there is a manufacture and running of the said business from 1958 to 1996. The trade mark 'Prestige' registered in the year 1980 in respect of textile piece goods for sale in the States of Andhra Pradesh, Karnataka, Kerala and Tamil Nadu has been renewed from time to time and is currently valid upto 1.9.2001. (3) Admittedly, the trade mark of the petitioners in respect of the particular business in classes 21 and 11 is entirely different from that of the respondents, who deal with the textile goods. However, it is the contention of the petitioners that they have intention to use the trade mark 'Prestige' in respect of the textile piece goods also in future. According to them, if the trade mark 'Prestige' registered in class 24 by the respondents is allowed to be on the Register, it would hamper the interest of the petitioners, who have intention to use the trade mark 'Prestige' in the future. Thus, the petitioners claim that they have become aggrieved. (4) Section 46(1)(a) deals with the registration of the trade mark without any bona fide intention. Section 46(1)(b) deals with the no bona fide use of the trade mark for the time being. For invoking both these provisions, a person is required to be an aggrieved person. As indicated by the various authorities referred to above, an applicant, in order to show that he is a person aggrieved, must show that in some possible way, he may be damaged or injured if the trade mark is allowed to stand.'Possible way' means, possible in a practical sense and not in a fantastic view. (5) The petitioners merely claim that they are aggrieved persons because they have intention to use the mark 'Prestige' at some unknown future dates for textile piece goods. It is also clear that neither the petitioners nor any other Company of the TTK Group have so far adopted or used the trade mark 'Prestige' for textile piece goods. (5) The petitioners merely claim that they are aggrieved persons because they have intention to use the mark 'Prestige' at some unknown future dates for textile piece goods. It is also clear that neither the petitioners nor any other Company of the TTK Group have so far adopted or used the trade mark 'Prestige' for textile piece goods. In such a factual situation, it has to be established by the petitioners that they are substantially interested in having the trade mark removed from the Register or they would be substantially damaged if the said mark is allowed to continue. (6) 5th respondent, as indicated above, is engaged in real estate and property development business and is also using the word 'Prestige' as trading name and style for itself as well as for its group of Companies. Feeling aggrieved by such use, viz., 'Prestige' as trading name, the petitioners filed a suit in C.S. No. 534 of 1995 before this Court. Pending disposal of the suit this Court granted injunction after hearing the parties. Aggrieved by the said order, the 5th respondent herein filed the appeal before the Division Bench of this Court. By the order dated 2.9.1997, this Court allowed the 5th respondent to use the word 'Prestige', since the 5th respondent has not engaged in any business as is carried on by the petitioners (plaintiffs in the said suit). It has been observed in the said order that the defendant (5th respondent herein) shall be at liberty to use the word 'Prestige' as name for trading style for the purpose of carrying on real estate business and the plaintiffs (the petitioners herein) shall not object to it. Before the Division Bench, the learned counsel for the plaintiffs also would submit that the plaintiffs shall not have any objection for the use of the word 'Prestige' for carrying on real estate business." 45. The above factors would reveal that the petitioners would claim aggrieved because of the usage of the name 'Prestige' for the textile business, as the petitioners have the intention to use the same in respect of textile business. 46. The above factors would reveal that the petitioners would claim aggrieved because of the usage of the name 'Prestige' for the textile business, as the petitioners have the intention to use the same in respect of textile business. 46. As discussed above, though, in my view, the materials available on record as on date would not show that on the basis of the misrepresentation and false statement, the registration was obtained in the year 1980 and there is no bona fide use of the said trade mark for the period of five years, I am not able to hold, having regard to the submissions made by the counsel for the parties and on a perusal of the records and typed set of documents produced by both the parties, that the petitioners are substantially damaged because of the use of the trade name by the respondents herein. 47. Though it is claimed by the respondents that they have been using the trade name 'Prestige' for four decades, it is not in dispute that the trade name has been registered in 1980 and the same has been used by the respondents in respect of textile goods for all these years. As mentioned above, the registration is periodically renewed and the same would be valid upto 1.9.2001. 48. It cannot be debated that so long as the mark is on the Register, the registered proprietors have exclusive right to the use of the trade mark in relation to the goods in respect to which the mark is registered. This statutory right under that, on the facts of this case and as stated in the plaint at several places, the Ist plaintiff was compelled to rely on the contract of dissolution dated 16.11.1974 to prove title to the trade mark and thereby for an injunction and hence it was not a right claimed under Common Law or under any statute, like the Trade Marks Act. 6. On the other hand, learned Senior Counsel for the respondents-plaintiffs, Mr.Gopal Subramaniam supported the view of the High Court by contending that the suit for injunction was based upon two rights, one being statutory under the Trade Marks Act arising out of prior registration of trade mark and alternatively, the suit was also based on the Common Law right available in a passing-off action. The suit was not based on any Contract between plaintiffs and defendants. The suit was not based on any Contract between plaintiffs and defendants. The provision in Section 69(2) did not apply if the right sought to be enforced did not arise out of a contract between the plaintiffs' firm and the d er Section 28 of the Trade and Merchandise Marks Act, 1958 cannot be suspended or efacted. 49. The mere assertion that the petitioners have intention to use the same would not, in my view, can give rise to the cause of action so as to maintain this petition by calling themselves as aggrieved. Except the assertion in the affidavit relating to the intention, there is no material whatsoever that the petitioners are substantially interested in having the mark removed from the Register. In other words, the petitioners have not made out a case to prima facie hold that they are substantially damaged by the respondents' registered mark remaining on the Register. 50. Under those circumstances, I hold that the petitioners are not the aggrieved persons as per the principles and guidelines given by the various decisions referred to above and hence, the petitioners would not sustain this petition for rectification. Consequently, the prayer asked for in this petition could not be granted. 51. In the result, the petition is dismissed. No costs.