VIKRAMAJIT SEN ( 1 ) THE case set out in the plaint is that the parties were erstwhile partners in the firm"sheetal Sweets". In April 1999, after mutual negociations between the two partnersthey decided that the firm would be dissolved. It is not disputed that two Dissolutiondeeds, dated 22/04/1999 and 2 9/04/1999 were executed. The caveat ordemurer of the Defendant is that the second Deed was signed by him by mistake/oversight. It is his contention that this Deed was one of many papers and in thismanner his signatures were obtained thereon by fraud. The plaintiffs grievance isthat despite the execution of these two Deeds the Defendant has set up his ownbusiness under the name of Sheetal Sweets. The Plaintiff has therefore prayed for aninjunction restraining the Defendant from carrying on business under this trade name. Whilst this allegation has not been denied by the Defendant, it is his case that therewas no agreement between the parties which restricted the Defendant from startingbusiness under the name and style of Sheetal Sweets. At the time of arguments itwas contended by the learned Counsel for the Defendant that it had been decidedthat the parties would use the firm name but with the suffix of their personal namesafter the trade name Sheetal sweets. Learned Counsel for the Defendant had alsosought to rely on an affidavit of the attesting witness in corroboration of his case. Hehas further contended that the first Deed clearly states that partnership had beenabsolutely dissolved and that therefore the second Deed could not possibly do thesame. Since the second Deed manifestly purports to do so. it cannot have any legalefficacy. He has also challenged the application of the second Deed. Relying on thecase of Shri Jawaharlal and Another Vs. M/s. Bharat Tobacco Manufacturingco. 1984 0 PTC 110 he has strongly contended that the injunction should be declinedsince it would amount to decreeing the suit before Trial. Learned Counsel has furthersubmitted that since the Plaintiff has approached the Court with inordinate delay on 22/08/1999, the injunction should be declined. Finally it is his contention thatthe suit is essentially one of passing off which is not maintainable. ( 2 ) 1 shall first deal of the decision in Jawaharlal s case (supra ). Learned Counsel has furthersubmitted that since the Plaintiff has approached the Court with inordinate delay on 22/08/1999, the injunction should be declined. Finally it is his contention thatthe suit is essentially one of passing off which is not maintainable. ( 2 ) 1 shall first deal of the decision in Jawaharlal s case (supra ). The Defendanthas relied on the opening words of the Head-Note but it would be relevant toreproduce it in its entirety, and when so done it would be clear that the Division Benchdid not opine that an injunction could not be granted in the facts disclosed in theplaint. Interim injunction-prima facie case-passing off:normally, in a passing off action, the injunction is not to be granted at the interimstage but keeping in view the facts that the product as well as the tin container andwordings thereon along with the photograph on the tin are so similar to the productand the appearance of the tin being used by the plaintiffs that any reasonable manwould be deceived into believing that the product being manufactured by thedefendants is the same that is being manufactured by the plaintiffs, thus this being aprima facie conclusion based on material on record, the interim injunction granted bythe single judge is upheld even when it may be that at the actual trial this conclusionmay be displaced or weekend. ( 3 ) THE Defendant s reliance on the decision of the Division Bench of this court inthe case of Goramal Hari Ram Vs. Bharat Shop and Oil Industries 1985 Arb. Lawrop. 49 does not advance his case either. Once again reliance has been placed ona portion of the paragraph and I am therefo (e reproducing the whole paragraph- IT is difficult to draw a line between cases in which the interim injunction has tobe issued and those in which it has to be refused. If it is granted as a matterof course, then the defendant will immediately stop trading in the article inquestion and the suit will become infructuous. If that happens, the plaintiffwould have achieved his purpose without a trial. It can only be allowed tohappen if the plaintiff has such a strong case that it is almost impossible torefute. If it is granted as a matterof course, then the defendant will immediately stop trading in the article inquestion and the suit will become infructuous. If that happens, the plaintiffwould have achieved his purpose without a trial. It can only be allowed tohappen if the plaintiff has such a strong case that it is almost impossible torefute. We have not been shown any such material on record as wouldestablish in our minds that the plaintiffs enjoy such a reputation in relation tothe soap "savera" as would impel the grant of an interim injunction. The factis that a limited registration has been granted to some other manufacturers,so we doubt very much that the plaintiffs have a reputation irrevocablyconnected with the trade mark. It may be that at the trial such a reputationmay be established and the plaintiffs may get a permanent injunction torestrain the defendants. We are satisfied that an interim injunction could notbe granted on the facts and circumstances of the present case. ( 4 ) WHAT has to be established by every Plaintiff as a prerequisite for the issuanceof an injunction is firstly the existence of a prima facie case in his favour. In my viewthe present case is an instance of an overwhelming case having been presented tothe court. The parties were erstwhile partners who had decided to dissolve the firm. Two Dissolution Deeds have been filed and it has been contended by Learnedcounsel for the Plaintiff that the first Deed concerned the Relinquishement of rights nthe shop in which the firm s business was transacted and the second, the agreementbetween the parties that the assets, goodwill and other benefits would inure only tothe Plaintiff. He as sought the support of the case Montari Overseas Limited Vs. Montari Industries Ltd. , 1996 PTC (16) in which a Defendant does business undera name which is sufficiently close to the name under which the Plaintiff is trading andthat name has acquired reputation and the public at large is likely to be misled thatthe Defendant s business is the business of the Plaintiff, or is a branch or a departmentof the Plaintiff, the Defendant is liable for an action in passing off. " The Divisionbench had expressed the opinion that the learned Single J. tidge was right in grantingthe ad interim injunction r^yed for by the Plaintiff. " The Divisionbench had expressed the opinion that the learned Single J. tidge was right in grantingthe ad interim injunction r^yed for by the Plaintiff. He nas also relied on Pov^ercontrol Appliancesvs. Sumit Machine Pvt. Ltd. 1994 ^1) Arbitration Law Reporter308. The Apex Court observed that "if the Plaintiff stood by knowingly and let thedefendant build upon important trade until it had become necessary to crush it, thenthe Plaintiffs would be stopped by their acquiescence. " Even though the members ofthe two concerns before the Court were clearly related to each other the Supremecourt had granted the injunction denied by the High Court. Learned counsel for theplaintiff has further cited M/s. Virendra Dresses, Delhi Vs. M/s. Varinder Garments,delhi AIR 1982 Delhi 482 and Century Traders Vs. Roshan Lal Duggar and Co. and Others MR 1978 Delhi 250. These precedents, to my mind, are not relevant tothe present case. ( 5 ) THE name under which persons transact business is definitely one of the mostimportant concomitant of goodwill. Black s law Dictionary defines "goodwill" interalia as "inclusive of every advantage, every positive advantage, that has beenacquired by a proprietor in carrying on his business, whether connected with thepremises in which the business is conducted, or with the name under which it ismanaged, or with any other matter carrying with it the benefit of the business or withthe name under which it is managed. (Emphasis added ). Shorn of legal esoterics thefirst idea or thought which would arise in the mind of any businessman in relation tothe "goodwill" would be the name of the concern. The Defendant has not denied thathe had retired from the partnership, therefore prima facie, he must have known thatthe Plaintiff would be entitled to the use of the firm name thenceforward even in theabsence of Dissolution Deeds. I am satisfied that a prima facie case has beenshown by the Plaintiff against the retired partner/defendant for the issuance of aninjunction restraining the latter from using or business in the name of the erstwhilefirm. The burden would heavily lie on the retiring partner to establish that it was clearlyand specifically understood that he would be permitted to start a fresh competingbusiness using the same name. This burden has not beenconclusively or evenpreponderantly discharged, atleast at this stage. The burden would heavily lie on the retiring partner to establish that it was clearlyand specifically understood that he would be permitted to start a fresh competingbusiness using the same name. This burden has not beenconclusively or evenpreponderantly discharged, atleast at this stage. What is contended is that thedefendant was not aware, as a consequence of the Plaintiff s subterfuge, that he wassigning the second Deed. The persons involved are not illiterates, but seasonedbusinessmen. Having signed a document, they must be held prima facie, to be boundby its terms. Even at the trial stage, it is almost an unbearable burden on the partyraising a defence de hors, opposed or contrary to a document to successfully proveits veracity. The onus can only be discharged at the time of trial, keeping inperspective the sundry proscriptions contained in the Evidence Act. Surely the partyrelying on a document must be held to have made out a prima facie against a partywho assails it on the ground that he signed it blindly. The Defendant can blame onlyhimself for being negligent, if his contention of having blindly signed the Deed dated29. 4. 1999 without realising what he was doing, is to be countenanced. Furthermore,the Defendant has put up a story that an oral agreement was arrived at whereby hewas permitted to use the name sheetal Sweets with the suffix of his name i. e. Manohar Singh. This covenant/agreement does not show up in any of the documents. I have specifically inquired as to whether the Defendant had used this suffix, of hispersonal name Daljit and the answer was in the negative. This ground therefore isclearly not available at least at this preliminary stage. In any event the proscriptioncontained in the Evidence Act, i. e. setting up a case contrary to that expressed in awritten document, may even stand in the way of the Defendant at the time of trial. Hecannot however, be allowed to raise this ground to obstruct the issuance of an adinterim injunction. ( 6 ) THE contention that the grant of an interim injunction would have the consequencesof closing the business of the Defendant cannot also be appreciated. In the first placethe cases relied upon by the Learned Counsel for the Defendant itself countenancethe issuance of an injunction where a good case had been made out. The Divisionbench did not state, although it could have, that injunction of this nature should neverbe granted. In the first placethe cases relied upon by the Learned Counsel for the Defendant itself countenancethe issuance of an injunction where a good case had been made out. The Divisionbench did not state, although it could have, that injunction of this nature should neverbe granted. I am of the view that it is better and pragmatic to injunct the Defendant atthe earliest stage, when his business is in the process of being established and is atits incipient and nascent stages, than at the end of what is invariably a protracted trial,when he has already transacted business for some years and has perhaps built upgoodwill in the business style. In the present case, where the trade name is identical,and is being employed by a former partner, the injunction ought to be issued forthwith. At the first date of hearing ex parte orders were not considered because Shri M. L. Mangla appeared for the Defendant and stated that if the Defendant had signed thesecond Dissolution Deed, he would impress upon his client to settle the matter. Theoriginal Deed was subsequently produced in Court by the Plaintiff and it was thereafterthat the Defendant sought time to file its Written Statement. ( 7 ) I am also unable to appreciate the argument that the Plaintiff has approachedthe Court with delay. It is not in dispute that the Defendant had opened his shop underthe name Sheetal Sweets on 22. 8. 1999 and the suit has been filed within six months. The Defendant has also not acted with bona fides since he has used the symbol R torepresent that his concern was registered, whereas this was not so. Learnedcounsel for the Defendant had sought to rely on an affidavit of the Attesting Witnesses,but I have declines to examine it at this stage, since it is in the nature of partisantestimony which should be relied upon after the witness has been cross-examined. Such an affidavit can be properly looked into only at the final stage; at the preliminarystage only documents whose execution is not in serious challenge should beconsidered. ( 8 ) I am, therefore, satisfied that a prima facie case has been overhelminglyestablished by the Plaintiff. The balance of convenience is clearly in favour of theplaitiff. The Defendant has retired from the partnership concern and is, therefore,setting up his fresh business in opposition to the erstwhile firm. His goodwill is inprocess of being established. ( 8 ) I am, therefore, satisfied that a prima facie case has been overhelminglyestablished by the Plaintiff. The balance of convenience is clearly in favour of theplaitiff. The Defendant has retired from the partnership concern and is, therefore,setting up his fresh business in opposition to the erstwhile firm. His goodwill is inprocess of being established. It would be far more damaging for him to have to adopta different trading style after a few years. Moreover, by that time the Plaintiff wouldalready have suffered irreparable damage to his business, even in the face of anagreement reduced to writing. Equity demands immediate interference. ( 9 ) UNDER these circumstances, the application is allowed and the Defendant isrestrained from manufacturing, selling offering for sale, advertising or displayingdirectly or indirectly or dealing in sweet including milk products, confectionery (nonmedicated ). Bakery products, Namkeens and allied goods under the trade marksheetal and SHEETAL SWEETS and also from running a Restaurant under thetrade name identical with and deceptively similar to the plaintiffs trade mark SHEETALand trade name SHEETAL SWEETS and from doing any other things as is likely tocause confusion and deception in the course of business activities of the plaintiff andthe defendant and from passing off defendants goods and business as and for thegoods and business of the Plaintiff till the next date of hearing. ( 10 ) I am of the prima fade opinion that having retired from the erstwhile partnershipthe Defendant was not justified to start his own new business under the name of thefirm from which he had retired. Prima fade it is unreasonable and unconscionable. None of the grounds raised in opposition to the passing of ad interim orders can beconsidered at this stage. They could only be adjudicated upon after the parties haveled their leading evidence. Some of his defences relied upon are contrary to covenentscontained in the written document, and the Defendant may be precluded from settingup a regime contrary thereto. ( 11 ) THE application is therefore allowed with costs of Rs. 5000. 00 to be paid by thedefendant to the Prime Minister s National Relief Fund for drought Victims withinfifteen days by a Demand Draft should be made in favour of Prime Minster s Nationalrelief Fund and be Deposited with Registrar of this Court. Application stands disposed of.