JUDGMENT B. P. DAS, J. — This appeal is directed against the order 23.12.2002 passed by the District Judge, Cuttack in C.M.C. No. 126 of 2002, allowing the application filed by the plaintiff (present respondent No. 1) under Order 39, Rules 1 and 2 of the Code of Civil Procedure (‘C.P.C.’ in short), and temporarily restraining the defendants (the present appellants and respondent No. 2) from manufacturing and marketing their product ‘HYCAL FORTE’. 2. The brief facts leading to the present appeal are that respondent No. 1 as plaintiff has filed a suit being O.S. No. 3 of 2002 praying, inter alia, for a permanent injunction re¬straining the defendants i.e., the present appellants and re¬spondent No. 2, their servants, agents and assignees from passing off in any manner or assisting others to pass off medicine under the trade mark ‘HYCAL FORTE’ and for a preliminary decree for ac¬counts of all profits made by the defendants in respect of its medicine sold under the aforesaid trade mark and also for a declaration that the plaintiff is exclusively entitled to use the trade mark ‘HICAL’ to the exclusion of others. Along with the plaint, the plaintiff-petitioner also filed an application under Order 39, Rules 1 and 2, C.P.C., registered as C.M.C. No. 126 of 2002, with the prayer for temporary injunction restraining the defendant-opposite parties from manufacturing and marketing their product ‘HYCAL FORTE’. The case of the plaintiff-petitioner (respondent No. 1) is that the petitioner has been marketing a drug by adopting the trade mark ‘HICAL’ since around 1988 and selling and distributing the same as well as other medicines through C. & F. Agents within the State of Orissa as well as other States. The Medicine ‘HICAL’ is very popular and has acquired reputation and good will in the pharmaceutical trade. During the period it also applied for registration of its trade mark ‘HICAL’ which is pending. In or about October, 2000 the defendant-O.Ps. (appellants) started manufacturing certain tablet in shape of medicine using decep¬tively the similar trademark ‘HYCAL FORTE; and marketed the same in different outlets at Cuttack as well as other places in the State of Orisa. Plaintiff-respondent No. 1 issued a Cease and Desist Notice on 23.11.2000 to the defendant-appellants to stop marketing and manufacturing their such deceptive product ‘HYCAL FORTE’ but the latter did not desist from their illegal act. Plaintiff-respondent No. 1 issued a Cease and Desist Notice on 23.11.2000 to the defendant-appellants to stop marketing and manufacturing their such deceptive product ‘HYCAL FORTE’ but the latter did not desist from their illegal act. Thereafter plaintiff-respondent No. 1 filed the aforesaid suit along with an application under Order 39, Rules 1 and 2 with the prayer as indicated above., 3. The learned District Judge, Cuttack, after hearing both the parties allowed the aforesaid application holding that there was a prima facie case available in favour of the plaintiff-petitioners as the drug ‘HICAL’ was a registered trade mark granted in favour of the petitioner earlier to ‘HYCAL FORTE’ of the defendant-O.Ps. and as the O.Ps. were guilty of passing off,the petitioner had a good prima facie case in his favour. As regards irreparable loss, the learned District Judge held that as the marketing of the medicine ‘HYCAL FORTE’ was being done de¬spite notice of Cease and Desist issued to O.Ps. 1 and 2, in view of passing off it was likely to cause great loss in the business of the product ‘HICAL’ manufactured and marketed by the plaintiff-petitioner (respondent No. 1). The learned District Judge accord¬ingly allowed the misc.case and temporarily restrained the de¬fendant -O.Ps. from manufacturing the marketing their product, namely, ‘HYCAL FORTE. The aforesaid order of the learned District Judge is under challenge in this proceeding. 4. Shri Avadhoot Sumant appearing with Shri G.Mukherjee, learned counsel for the appellants, submitted that the learned District Judge has failed to distinguish a case of passing off and a case of infringement of trade mark and ultimately fell into an error by considering the present case as if it was a case of infringement of trade mark. 5. At the outset I may make it clear that both the parties are unanimous in saying that their respective trade marks have not been registered for which the observation of the learned District Judge in different paragraphs of the impugned order that ‘HICAL’ is a registered trade mark is not correct. It is also a fact to be borne in mind that in case of passing off, the remedy is available under the common law and for infringement the remedy is available under the statute. It is also a fact to be borne in mind that in case of passing off, the remedy is available under the common law and for infringement the remedy is available under the statute. A bare perusal of the averments made in the petition for injunction and the facts so narrated in the body of the impugned order makes it amply clear that the case at hand is a case in the nature of passing off and the dispute before this Court revolves round whether there was a prima facie case before the District Judge for issuance of the order of injunction against the appellants restraining them from manufac¬turing, distributing and selling their product ‘HYCAL FORTE’. The question of delay in filing the suit raised by the appellants, in my considered opinion, is not necessary to be deal with in this proceeding because the same can be taken care of by the trial Court during the course of hearing of the suit. As I have already indicated that this is a suit for passing off, the observation of the learned District Judge saying the trade mark of plaintiff-respondent No. 1 to be a registered one will in no way make the order of injunction illegal, if a prima facie case was made out by the plaintiff-respondent No. 1 before the trial Court for grant of interim order. 6. Learned counsel for the appellants referred to a deci¬sion of the Apex Court in Kaviraj Pandit Durga Dutta Sharma v. Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980 , in order to show the distinction between action for passing off and action for infringement of trade mark. There is no need to go into the above issue as I have already found that the case at hand is a case of passing off. Learned counsel for the appellants further relying upon a decision of the Delhi High Court in Shri Gopal Engg. and Chemical Works v. M/s. POMX Laboratory, AIR 1992 Delhi 302, submitted that this is a case of laches on the part of the plaintiff leading to acquiescence for which respondent No.1, which is the plaintiff in the Court below, was not entitled to the interim relief of in¬junction or restraint. Learned counsel for the appellants strenuously argued that the appellants were using the trade mark honestly and openly since they launch their product during the year 2000. Learned counsel for the appellants strenuously argued that the appellants were using the trade mark honestly and openly since they launch their product during the year 2000. It was further argued that respondent No. 1 claiming intellectual property right in its trade mark sat silently for a long period of 14 months in bringing the suit, the delay of which amounts to acquiescence. In the facts and circumstances of the case, when Cease and Desist notice had admittedly been issued to the appellants, mere delay in bringing the suit does not debar the plaintiff from getting an order of injunction. Since defendant appellants had been proved with the notice warning them in respect of the impugned misuser of the trade name, the defendants had full knowledge of the fact that they were likely to be restrained from carrying on the alleged misuser. (See AIR 1984 Delhi 265 : Glaxo Operations UK Ltd. v. Samrat Pharmaceuitcals, Kanpur). In the present case it is an admitted fact that the appellants’ product, ‘HYCAL FORTE’ came into the market much after ‘HICAL’ the product of respondent No. 1, made its presence felt in the market. In my considered opinion, the question of delay and acquiescence can also be dealt with and decided at the hearing of the suit by the trial Court. However, learned counsel for the appellants drew my attention to the following observation of the trial Court made in paragraph 16 of the impugned order : “.......Therefore, even if there is delay in taking action of passing off it cannot be a case of acquiescence by the plain¬tiff-petitioner as it affects general public and when permanent injunction cannot be refused, there can be no scope for refusal of temporary injunction.” and taking a cue from the said observation, he submitted that the trial Court made up its mind to pass an order of permanent in¬junction by pre-judging the issue and it can, therefore, be construed that the suit was pre-judged. On perusal of the entire impugned order, I find that the above quoted portion of the impugned order is an observation of the trial Court and not a finding and the same has been made only with reference to the decision referred to therein,i.e, AIR 1990 Delhi 19 : M/s. Hindu¬stan Pencil Pvt. Ltd. v. M/s. India Stationery Products Co. and another). and another). So, the apprehension of the learned counsel for the appellants is totally founded and it cannot be said that the trial Court had made up its mind for passing an order of perma¬nent injunction. 7. After hearing the rival contentions of the learned counsel for the parties and looking into the various judgments cited by both the sides in the context whether the ad interim order of injunction should be continued or vacated, it would be worthwhile and sufficient to rely upon the judgment of the Apex Court in the case of Cadila Health Care Ltd. v. Cadila Pharma¬ceuticals Ltd. reported in J.T. 2001 (4) S.C. 243, wherein it was laid down that while considering grant of temporary injunction in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity,the following factors were to be taken note of : “a) The nature of the marks i.e., whether the marks are work marks or label marks or composite marks, i.e., both words and label works. b) The degree of resemblance between the marks phonetically similar and hence similar in idea. c) The nature of the goods in respect of which they are used as trade marks. d) The similarity in the nature, character and performance of the goods of the rival traders. e) The class of purchasers who are likely to buy the goods bear¬ing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods. f) The mode of purchasing the goods or placing orders for the goods; and f) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.” In the aforesaid decision, the Apex Court dealing with the tests of confusing similarity, when the goods involved are medical products, observed as follows : “........In a country like India where there is no single common language, a large percentage of population is illiterate and a small fraction of people know English, then to apply the principles of English law regarding dissimilarity of the marks or the customer knowing about the distinguishing characteristics of the plaintiffs goods seems to over look the ground realities in India. While examining such cases in India, what has to be kept in mind is the purchaser of such goods in India who may have abso¬lutely no knowledge of English language or of the language in which the trademark is written and to whom different words with slight difference in spelling may sound phonetically the same. While dealing with cases relating to passing off, one of the important tests which has to be applied in each case is whether the misrepresentation made by the defendant is of such a nature as is likely to cause an ordinary consumer to confuse one product for another due to similarity of marks and other sur¬rounding factors. What is likely to cause confusion would vary from case to case. xxx xxx xxx A stricter approach should be adopted while applying the test to judge the possibility of confusion of one medicinal product for another by the consumer. While confusion in the case of non-medi¬cal products may only cause economic loss to the plaintiff, confusion between the two medicinal products may have disastrous effects on health and in some cases life itself. Stringent meas¬ures should be adopted specially where medicines are the medicines of last resort as any confusion in such medicines may be fatal or could have disastrous effects. The confusion as to the identi¬ty of the product itself could have dire effects on the public health." Now it is to be seen whether there is any degree of resem¬blance between the two marks which are phonetically similar. As I find from the two products, the trade name of the product of plaintiff-respondent No. 1 is ‘HICAL’ whereas that of the defend¬ant-appellants is ‘HYCAL FORTE’ I am unable to accept the argu¬ment of the learned counsel for the appellants that there is phonetical difference as well as difference in spelling of the two trade names. A bare look at the trade names of both the products, though there may be difference in the spelling, both sound phonetically the same if we consider it in India context for which there is every likelihood of confusion of the general con¬sumers while dealing with said product. A bare look at the trade names of both the products, though there may be difference in the spelling, both sound phonetically the same if we consider it in India context for which there is every likelihood of confusion of the general con¬sumers while dealing with said product. Considering all these as¬pects and looking into the judgment of the Apex Court in Cadila Health Care’s case (supra), it can safely by concluded that there is every likelihood of the general consumers being confused/misled by the trade names of the two products, as ‘HYCAL FORTE’ is deceptively similar to ‘HICAL’ in spelling and so also phonetically. ‘HICAL’ and ‘HYCAL’ being phonetically same and similar, possibility of confusing the general public by launching the latter product in the market cannot be ruled out even if the word ‘FORTE’ is suffixed to ‘HYCAL’. That too, ‘HICAL’ being an earlier entry to the market a later entry of another product with a deceptively similar name may be with an intention to take away a chunk of the profits of the manufacturer of the earlier product. 8. For the foregoing reasons, the order passed by the learned District Judge granting temporary injunction does not suffer from any infirmity and, therefore, there is no scope for this Court to interfere with the impugned order. 9. In the result, the appeal is dismissed. The impugned order of restraint shall continue till disposal of the suit. I, however, direct that the trial Court shall do well to dispose of the suit expeditiously, preferably within a period of three months from the date of receipt of this judgment. There shall be no order as to cost. Appeal dismissed.