Judgment M.R. Shah, J.—Present Appeal From Order is preferred by the appellant - original defendant No. 1 (hereinafter after referred to as “the defendant No. 1”) challenging the order dtd.27/8/2008 passed by the learned Chamber Judge, City Civil Court at Ahmedabad below Notice of Motion Ex.7 in Civil Suit No. 977 of 2008, by which the learned Judge has allowed the said Notice of Motion taken out by the Respondent No. 1 herein-original plaintiff (hereinafter referred to as “the original plaintiff”), by granting the interim injunction restraining the appellant herein - original defendant No. 1, their proprietors, servants, agents, dealers, distributors and all other persons connected with them in any manner from marketing, selling and/or using in relation to their CATTLE FEED / CATTLE FOOD and any other like goods under the impugned mark containing and consisting the name “NANDI” and/or “NANDI NI BRAND” and/or device of BULL in any manner, and any other mark/label which may be identical and/or deceptively similar to the plaintiff’s prior used trade name and trade mark NANDI SEEDS so as to infringe the vested property’s right of the plaintiff and to pass off their such goods and business or unable others to pass off their goods as and for the true goods and business of the plaintiff. By the impugned order, the learned trial court has also granted interim injunction in favour of the respondent herein - original plaintiff and against the appellant - defendant restraining them, their proprietor, partners, servants, agents etc. from n imitating and/or reproducing the plaintiff’s artistic work of NANDI SEEDS including the device of Bull in any manner in the impugned label on the packing of CATTLE FOOD / CATTLE FEED in any manner and/or any other artistic work which may be identical and/or deceptively similar or substantially reproduction of artistic work identical to NANDI of the plaintiff so as to infringe upon the plaintiff’s capital under the provisions of the Copy Right Act, 2007. 2. Facts in nutshell :— 2.1. The original plaintiff is a registered Partnership Firm engaged inter alia, in the business of producing, selling and marketing various kinds of SEEDS under the trade name and trade mark Nandi as also under the trade mark NANDI with the device of “sitting Bull” since the year 1976. 2. Facts in nutshell :— 2.1. The original plaintiff is a registered Partnership Firm engaged inter alia, in the business of producing, selling and marketing various kinds of SEEDS under the trade name and trade mark Nandi as also under the trade mark NANDI with the device of “sitting Bull” since the year 1976. As per the plaintiff they also pack such SEEDS bearing the artistic works containing and consisting of the name “Nandi” with the device of “sitting Bull.” 2.2. The trade mark Nandi with the device of “sitting Bull” is registered in respect of “SEEDS” included in Class-31 under registration No. 353869 w.e.f. 26/9/1979. The trade mark NANDIBINI is also registered under No. 353868 for SEEDS included Class-31 w.e.f. 26/9/1979. The trade mark Nandi-12 is also registered under No. 509344 for SEEDS included Class-31 w.e.f. 27/4/1989. It is not in dispute that all three registrations are renewed from time to time and are valid and subsisting. 2.3. That the artistic work titled NANDIBINI (in Hindi Script) with the name “NANDI” and the device of “setting Bull” is registered under No. A-38386/82 and the artistic work titled NANDIBINI (in Hindi Script) is also registered under No. A-39169/83 dated 18/4/1983 in the name of the plaintiff under the provisions of the Copyright Act, 1957. 2.4 The application No. 1328538 to register the trade mark NANDI NI Brand with device of “sitting Bull” in respect of the goods “all type CATTLE FEED included in Class-31” came to be advertised before acceptance under Section 20(1)(proviso) in the Trade Mark Journal dated 16/6/2007 in the name of appellant - defendant No. 1 and therefore, the plaintiff lodged the notice of opposition thereto on 4/1/2008 before the Registrar of Trade Marks-Ahmedabad as provided in Section 21 of the Act. The said opposition is pending for adjudication before the Tribunal. 2.5. As per the plaintiff, the plaintiff inquired in to markets during March, 2008 to find out whether the appellant - defendant No. 1 is selling CATTLE FEED/CATTLE FOOD under the mark NANDI NI Brand and/or the device of “sitting Bull” and found that the original defendant No. 2 was selling such goods of the original defendant No. 1 under the impugned mark in Ahmedabad City. 2.6. 2.6. That as per the plaintiff, as the goods of the plaintiff are “SEEDS” and those of the appellant are “CATTLE FEED/CATTLE FOOD”, the same are of similar description/cognate nature and the impugned mark NANDI NI BRAND with the device of “sitting Bull” of the plaintiff being identical and/or deceptively similar, the same would be likely to be taken by the purchasers as indicating a connection in the course of trade between the goods of the defendants with those of the plaintiff and as such, the deception and confusion as to the trade origin of such goods would be inevitable as the purchasers of such goods are mainly farmers, cultivators and villagers who may be illiterate or badly literate and from the rural areas and are sold from the very shop and since the defendant No. 1, inspite of notice of opposition lodged, continued the act of infringement of the trade mark, passing off and infringement of copyright, the plaintiff filed the aforesaid suit for injunction and damages and rendition of accounts against the defendant in the City Civil Court at Ahmedabad. The plaintiff took out notice of motion at Ex.7 praying for interim injunction against the defendants as per Para 28 of the Notice of Motion. 2.7. Notice of Motion was opposed by the appellant - defendant No. 1 by submitting that the trade mark registered in favour of the plaintiff is with respect to the goods “SEEDS” and so far as the defendants are concerned, they are manufacturing and selling CATTLE FEED / cattle food which is not manufactured by the holder of the registered trade mark NANDI NI BRAND and therefore, they cannot be restrained from manufacturing and selling the CATTLE FEED / cattle food under the name of NANDI NI BRAND. 2.8. That the learned Chamber Judge of the Civil Court, Ahmedabad vide the impugned judgement and order allowed the aforesaid Notice of Motion and granted interim injunction as prayed for in terms of Para 28(A) and 28(B) referred to hereinabove during the pendency and final disposal of the suit. 2.8. That the learned Chamber Judge of the Civil Court, Ahmedabad vide the impugned judgement and order allowed the aforesaid Notice of Motion and granted interim injunction as prayed for in terms of Para 28(A) and 28(B) referred to hereinabove during the pendency and final disposal of the suit. Being aggrieved by and dissatisfied with the impugned judgement and order dated 27/8/2008 passed by the learned Chamber Judge, City Civil Court, Ahmedabad below Notice of Motion Ex.7 granting temporary injunction against the appellant herein - original defendant No. 1, the appellant No. 1 - original defendant No. 1 has preferred present Appeal From Order with Civil Application therein. 3. Mr. Dhaval Dave, learned Advocate has appeared on behalf of the appellant - original defendant No. 1. 3.1. Mr. Dhaval Dave, learned Advocate for the appellant has submitted that admittedly the original plaintiff is having registration of trademarks [1] NANDI [2] NANDINI and [3] NANDI-12 in respect of only “SEEDS” falling under Class 31 of the Schedule. It is also further submitted that though the item “CATTLE FEED” falls within Class 31, the plaintiff is not granted registration of trademark in respect of the aforesaid words qua the CATTLE FEED; 3.2. It is also further submitted that even assuming and without prejudice to the contentions of the appellant to the contrary that there is no similarity between the words ‘Nandinibrand?” and any of the aforesaid three words registered as trademarks in favour of plaintiff for SEEDS, the provisions contained in Section 29(1) of the Trademarks Act, 1999 (“The Act”, for convenience) would not be attracted. It is submitted that Section 29(1) would be attracted if a mark identical with or deceptively similar to the registered trademark is used in respect of the GOODS, for which there exists a registered trademark. It is submitted that if the word “Nandinibrand?” was to be used by the appellant in respect of SEEDS, it would have been permissible on the part of plaintiff to invoke the application of Section 29 of the Act by submitting that the word “Nandinibrand?” is deceptively similar with that of the aforesaid three words, for which there exists registered trademarks in favour of the plaintiff. It is submitted that as such considering above even the learned Chamber Judge has not invoked the application of Section 29(1) of the Act while granting for passing the injunction against the defendant No. 1. It is submitted that as such considering above even the learned Chamber Judge has not invoked the application of Section 29(1) of the Act while granting for passing the injunction against the defendant No. 1. 3.3. Mr. Dave, learned Advocate appearing on behalf of the appellant - original defendant No. 1 has submitted that the learned Chamber Judge has based his decision on Section 29(4) of the Act. It is submitted that on plain reading of Section 29(4) of the Act, it would reveal that the same would come into play when a mark, identical with or similar to the registered trademark, is used by a third party in relation to the goods, which are not same or similar to the goods for which the registered trademark is used. It is submitted that since SEEDS and CATTLE FEED would not qualify as same or similar goods, it can safely be concluded that the case on hand would fall, in the first instance, within the scope and purview of Section 29(4) of the Act. It is submitted that however, as per Clause (c) of Section 29(4) of the Act, there is one more requirement for the purpose of holding usage of a mark identical with or similar to the registered Trademark if the goods other than the goods, for which the registered Trademark is used, as an act of infringement of the registered Trademark. 3.4. It is further submitted that for bringing the case within Clause (c) of Section 29(4) of the Act, the plaintiff has to satisfy that the concerned mark has a reputation in India and usage of the concerned mark which is identical with or similar to the registered Trademark, is aimed at taking unfair advantage without due cause or is detrimental to the distinctive character or the repute of the registered Trademark. It is submitted that therefore, unless and until ingredients of Clause (c) of Section 29(4) of the Act are found to be in existence, it would not be permissible on the part of the holder of the concerned registered Trademark to claim the infringement, by simply pressing into service the contention that the usage of the concerned mark for the goods other than the goods, for which the registered Trademark exists would amount to infringement of the registered Trademark, in as much as, the concerned mark is identical with or similar to the registered Trademark. It is submitted that in the facts and circumstances of the case, neither does there exist an appropriate pleading in this regard on the part of plaintiff nor does there exist any material in support thereof. It is submitted that the learned Chamber Judge has proceeded on the footing as if the requirement of Clause (c) of Section 29(4) of the Act is an empty formality and the order of injunction has to follow as a matter of course once the case is found to be covered by Clauses (a) and (b) of Section 29(4) of the Act. 3.5. It is further submitted by Mr. Dave, learned Advocate appearing on behalf of the appellant - defendant No. 1 that there is nothing on the record to show as to how the usage of the word “Nandinibrand” by the defendant No. 1 for its CATTLE FEED is aimed at gaining an undue unfair advantage or is detrimental to the distinctive character or reputation of the registered Trademark belonging to plaintiff. It is submitted that as such the defendant is in the business of CATTLE FEED since 1990 which shows that the defendant No. 1 is an established name in the field of CATTLE FEED and, therefore, there is no apparent need for the defendant No. 1 to encash upon the alleged so-called reputation of the plaintiff. It is submitted by Mr. Dave, learned Advocate appearing on behalf of the appellant - defendant No. 1 that In view of the above fact, if Respondent No. 1 is to be permitted to restrain the appellant from using the aforesaid word “Nandinibrand” in respect of its CATTLE FEED despite the fact that the registration of the Trademarks in favour of the plaintiff are in respect of SEEDS only, the same are to be restricted only to the SEEDS and not for any other item under Clause 31 of the Schedule. It is submitted that if the plaintiff is to be permitted to restrain the defendants from using the brand ‘NANDI NI BRAND with respect to its CATTLE FEED would tantamount to permitting the plaintiff to act in derogation of the dictum of law laid down by the Honourable Supreme Court in the matter of [Vishnudas Trading as Vishnudas Kishandas vs. Vazir Sultan Tobacco Co. Ltd. reported in AIR 1996 SC 2275 ]. Ltd. reported in AIR 1996 SC 2275 ]. It is further submitted that grant of any interim injunction in favour of the plaintiff would tantamount to granting registration of trade mark in their favour in respect of CATTLE FEED, which is not possible and/or or permissible in view of the aforesaid decision of the Honourable Supreme Court. 3.6. It is further submitted by Mr. Dave, learned Advocate appearing on behalf of the appellant that even the word “Nandinibrand” is capable of being distinguished from the aforesaid three words, namely [1] NANDI [2] NANDIBINI and [3] NANDI-12, even on the plain reading thereof. It is further submitted that even the name of the defendant No. 1 prominently figures on the concerned package of CATTLE FEED, beneath the said word “Nandinibrand”. It is further submitted that in some of the marketing material for the said CATTLE FEED of the defendant No. 1, even the photograph of the proprietor of the defendant No. 1 prominently figures. It is further submitted that all these factors go to indicate that there is not even a slightest intention on the part of the defendant No. 1 to pass off its CATTLE FEED as that of plaintiff. It is further submitted that there are relevant material placed on record by the defendant No. 1 vide its List Ex.20 on the record of the suit, suggesting that the defendant No. 1 is in the business of CATTLE FEED in the name of “Nandinibrand” since 1990. It is submitted that it may not be possible on the part of the Appellant to have the packaging material meant for the CATTLE FEED with the usage of the word “Nandinibrand” in vogue in the year 1990 on account of efflux of time. It is submitted that in the year 2004, when some third party attempted to use the name “Nandinibrand” for CATTLE FEED, the defendant opposed the same by issuing an appropriate public notice in that regard. 3.7. In written submission, Mr. Dave, learned Advocate appearing on behalf of the appellant - defendant No. 1 has tried to submit relying upon Section 23(1) of the Act that the defendant No. 1 was entitled to deemed registration in respect of “Nandinibrand” as its trademark for CATTLE FEED. 3.7. In written submission, Mr. Dave, learned Advocate appearing on behalf of the appellant - defendant No. 1 has tried to submit relying upon Section 23(1) of the Act that the defendant No. 1 was entitled to deemed registration in respect of “Nandinibrand” as its trademark for CATTLE FEED. It is further submitted that there was no reason for the registration of trade mark to have caused readvertisement of application of the defendant No. 1 in the Trade Mark Journal. However, it is required to be noted that the aforesaid submissions are neither argued before the learned Chamber Judge nor before this Court at the time of submission and only the same is reflected in the written submission, which cannot be considered. 3.8. It is also further submitted by Mr. Dave, learned Advocate appearing on behalf of the appellant - defendant No. 1 that even otherwise the plaintiff is not entitled to any interim injunction as prayed for as there is delay on the part of the plaintiff in instituting the said suit. Mr. Dave has relied upon the decision of the Hon’ble Supreme Court in the case of [Ramdev Food Product Pvt. Ltd. vs. Arvindbhai Rambhai Patel & Ors., reported in AIR 2006 S.C. 3304 ] (Para 109). It is submitted that the case sought to be urged against the defendant No. 1 by the plaintiff is not that of infringement but of passing off and therefore, when there is a delay on the part of the plaintiff in instituting the suit, the same would disentitle the plaintiff from claiming relief at an interim stage. 3.9. It is also further submitted that the balance of convenience also does not lean in favour of the plaintiff inasmuch as the defendant No. 1 is in the business of CATTLE FEED since 1990 and therefore, if by way of interim injunction the defendant No. 1 is to be restrained from using the word “NANDI NI BRAND” for its business for the CATTLE FEED, it would lead to a situation where the appellant - defendant No. 1 have to start from scratch for the purpose of promoting its product in the market and if ultimately the plaintiff fails in the suit, the damage done in the meantime to the defendant would be irreparable in nature and it would not be even possible for anybody to measure the quantum thereof. On the other hand if the defendant No. 1 is to lose in the suit and is to be concluded against the defendant No. 1 that by using the word “Nandinibrand”, it has encashed upon the goodwill alleged to be belonging to plaintiff, the interest of plaintiff can be sufficiently taken care of at the stage of final hearing of the suit by putting the defendant No. 1 at the interim stage to a condition that the defendant No. 1 shall have to maintain proper accounts in respect of its business in the field of CATTLE FEED. 3.10. Mr. Dave, learned Advocate appearing on behalf of the appellant - original defendant No. 1 has further submitted that the aforesaid submissions would also apply to the device of “Sitting Bull” as copyright is also claimed by the plaintiff in respect of design NANDI (Sitting Bull). By making above submissions and relying upon the aforesaid two decisions of the Hon’ble Supreme Court, it is requested to allow the present Appeal From Order by quashing and setting aside the order passed by the learned Chamber Judge and vacate the interim injunction issued against the appellant No. 1 on suitable terms. 4. Appeal From Order is opposed by Mr. P.M. Thakkar, learned Senior Advocate appearing with Mr. P.Y. Jasani for the respondent original plaintiff. 4.1. Mr. P.M. Thakkar, learned Senior Advocate for the respondent has submitted that admittedly the original plaintiff is the owner of registered Trade Marks: NANDI, NANDIBINI and NANDI-12. 4.2. It is also further submitted that it is also not in dispute that device of “Sitting Bull” is also registered in favour of the plaintiff. It is submitted that the respondent - original plaintiff has a Research and Development Unit recognized by the Government of India, Ministry of Science and Technology and is also recognized as the best private organization society of Millet Research & Rajasthan Agricultural University for the contribution in the sector of SEEDS over a period of three decades. It is also further submitted that being a most reputed SEEDS firm, the plaintiff is associated with many associations viz. SEEDS Association of India, Gujarat State SEEDS Producers Association, Gujarat Hybrid SEEDS Producers & Dealers Association, SEEDS Men Association-Hyderabad, All India SEEDS Growers Merchant & Nurserymen Association. 4.3. It is also further submitted that being a most reputed SEEDS firm, the plaintiff is associated with many associations viz. SEEDS Association of India, Gujarat State SEEDS Producers Association, Gujarat Hybrid SEEDS Producers & Dealers Association, SEEDS Men Association-Hyderabad, All India SEEDS Growers Merchant & Nurserymen Association. 4.3. It is also further submitted that sales of various kinds of SEEDS under the trade name and trade mark Nandi SEEDS / NANDIBINI with device of “sitting Bull” was Rs.5 Lacs in the year 1976-77 which has been increased in the year 2007-08 to 1000 Lacs. It is further submitted that the advertisement and sales promotional expenses incurred by the plaintiff runs into several lacs of rupees and during the last three years i.e. from 2005 to 2008, the same is more than Rs.180 Lacs. Therefore, it is submitted that the respondent plaintiff’s SEEDS under the trade name and trade mark Nandi SEEDS with the device of “sitting Bull” have acquired a trustworthy and prominent place in the markets and have earned good reputation and goodwill during last three decades. Therefore, the plaintiff is also entitled to sue for action of “passing off” against the imitators imitating the said prior used and well famous trade marks. 4.4. It is further submitted that the application No. 1328538 to register the trade mark NANDI NI Brand with device of “sitting Bull” in respect of the goods “all type CATTLE FEED included in Class-31” came to be “advertised before acceptance” under Section 20(1) (proviso) in the Trade Mark Journal dated 16/6/2007 in the name of appellant-defendant No. 1 and immediately thereafter having come to know about the same, the plaintiff lodged the notice of opposition thereto before the Registrar of Trade Marks-Ahmedabad as provided in Section 21 of the Act and the said opposition is pending for the adjudication before the Tribunal. 4.5. It is submitted by Mr. Thakkar, learned Senior Advocate appearing on behalf of the original plaintiff that the suit by the respondent-plaintiff is for the infringement of trade mark under Sections 29(2) & 29(4) read with Sections 28 & 135 of the Trade Marks Act, and the suit of the plaintiff is also for the action of passing off as provided under Section 27(2) of the Act. The suit is also for the infringement of Copyright. The suit is also for the infringement of Copyright. It is submitted that the learned Chamber Judge has rightly granted the injunction in favour of the plaintiff infringement of trade mark as well as for the passing off against the use of the disputed mark NANDI NI BRAND with the device of “sitting Bull” for and in respect of the goods “CATTLE FEED/ cattle food.” 4.6. It is submitted that in the Written Statement at Ex.18, the defendant No. 1 has categorically admitted that the goods of the parties are sold from the same shop, from the same counter and to the same class of customers (Para 9 and Para 32). 4.7. It is further submitted that though the defendant No. 1 claimed to have used the disputed mark NANDI NI BRAND with the device of “Sitting Bull”, since 1990 however, the defendant has not produced anything on record which may suggest even remotely that they are using the impugned mark “honestly” or “notoriously” since 1990 or at any subsequent stage. It is submitted that the documents so produced with the list at Exh.20 in the suit contains few copies of sale bills, but none of such bills mention as to the use of the impugned mark. No advertisement insertions in the newspaper or magazines are produced. Only few copies of cash memo pertaining to screen printing of templates during the years 2001 to 2007 are produced and therefore, the claim of use of the impugned mark since 1990, appears to be dubious. 4.8. It is further submitted that as such the appellant-defendant No. 1, has made a categorical statement while asked by Dy. Registrar, City Civil Court, Ahmedabad as Court Commissioner in the inquiry as to find out the profit earned by the appellant, that prior to 2005, they were not using the mark NANDINI or the device of “sitting Bull” and prior to 2005, they were selling CATTLE FEED only in blank gunny bags and therefore also the claim of the defendant No. 1 is not correct or genuine. 4.9. It is submitted by Mr. 4.9. It is submitted by Mr. Thakkar, learned Senior Advocate appearing on behalf of the Respondent No. 1 - original plaintiff has submitted that looking to the provisions of Section 29(2) of the Act, the same talks about the “confusion” on the part of the customers, while Section 29(4) of the Act is with regard to the damage caused by the defendant to the goodwill and reputation of the registered proprietor and therefore, if the goods are not identical but similar, in that case, the question would arise as to “the confusion.” For the meaning of “confusion”, learned Advocate has relied upon the following decisions:— (i) AIR 1970 SC 2062 , (in Para 11) (ii) AIR 1960 SC 142 (Paras 19 & 20) (Corn Products Refining Company vs. Shangrila Food Products Ltd.) (iii) 1981 PTC 61 (Bombay) (Paras 9, 10 & 12) (Mohan Singh of Link Photo Spares vs. Jayantibhai S. Patel) (iv) 1988 PTC 1 (Bombay-DB) (Paras 9 & 10) Kamal Trading Company vs. Gillette U.K. Ltd. (v) 1988 PTC 133 (Bombay-DB) (Para 10) Bajaj Electricals Ltd. vs. Metal & Allied Products (vi) PTC (Suppl) (1)-615 (Delhi) (Paras 7 & 8) Kaira District Co-op. Milk Producers Union Ltd. vs. Bharat Confectionery Works (Regd.) (vii) 2003 (27) PTC 391 (Delhi) (Paras 10 and 13) Sarda Plywood Industries Ltd. vs. Tac Construction Materials Ltd. & Ors. 4.10. It is further submitted that the plaintiff is prior user of the trade name and trademark NANDI as also the device of Sitting Bull in respect of “SSEEDS” since the year 1976 and has obtained registrations since the year 1979 and the user is of more than three decades and therefore, they have acquired reputation and goodwill in the market and the turnover runs into several lakhs of rupees coupled with huge expenditure on advertisement and sales promotional and therefore, in the alternative, the provisions of Section 29(4) would be attracted. In support of his submissions he has relied upon the following decisions:- (i) 2007 (35) PTC 474 (Mad) (Para 51 to 56) (Health & Glow Retailing Pvt. Ltd. vs. Dhiren Krishna Paul, Trading as Health and Glow Clinic & Anr.) (ii) Unreported decision of this Court rendered in Appeal From Order No. 219 of 2007 (unreported) (“Kamlesh Patel & Ors. vs. Kaira District Co.op Milk Producers” Union Ltd. & Anr. ) (iii) MIPR 2007 (2) 0269 (Cadbury India Ltd. & Ors. vs. Kaira District Co.op Milk Producers” Union Ltd. & Anr. ) (iii) MIPR 2007 (2) 0269 (Cadbury India Ltd. & Ors. vs. M/s. Neeraj Food Products). 4.11. Now meeting with the submissions made on behalf of the appellant - defendant No. 1 with respect to delay in instituting the suit thereby disentitling the plaintiff and getting the interim injunction, Mr. Thakkar, learned Senior Advocate has relied upon the following decisions:— (i) [2000 (4) SCC 90 (Para 5) (Midas Hygiene Industries (P) Ltd. vs. Sudhir Bhatia), and (ii) 2008(2) GLR 1255 (Para 4) (Vikram Stores vs. S.N. Perfumery Works).] 4.12. Mr. Thakkar, learned Senior Advocate has submitted that the delay by itself may not be a ground for refusing to issue injunction. In support of his submission, he has also relied upon the following decisions:— (i) [ 2007 (6) SCC 1 (Para 16) M/s. Heinz Italia Versus M/s. Dabur India Ltd. and (ii) 2006 (8) SCC 726 Ramdev Food Products Pvt. Ltd. vs. Arvindbhai Rambhai Patel and Ors.] 4.13. It is also further submitted by Mr. Thakkar, learned Senior Advocate appearing for the original plaintiff that the decision of the Hon’ble Supreme Court in the case of Vishnudas Trading (Supra) relied upon by the defendant No. 1 would not be applicable to the facts the present case as the dispute before the Hon’ble Supreme Court was with respect to ratification application only. It is submitted that even in Para 48 of the said decision, the Hon’ble Supreme Court has categorically observed that the Hon’ble Supreme Court has not considered the aspect of infringement. 4.14. It is also further submitted by Mr. P.M. Thakkar, learned Senior Advocate for the original plaintiff that even the expression “Sreputation in India” figuring in Clause-C of Section 29(4) of the Act would mean registration of the concerned trade mark in any part of India and the same cannot be construed to mean that the concerned registered trade mark should have reputation across the nation. 4.15. P.M. Thakkar, learned Senior Advocate for the original plaintiff that even the expression “Sreputation in India” figuring in Clause-C of Section 29(4) of the Act would mean registration of the concerned trade mark in any part of India and the same cannot be construed to mean that the concerned registered trade mark should have reputation across the nation. 4.15. It is, therefore submitted that when the original plaintiff is the owner of registered trade mark [1] NANDI [2] NANDIBINI and [3] NANDI-12 and the device “Sitting Bull” with respect to the SEEDS and the defendant No. 1 is trying to manufacture and sell the goods with name ‘NANDI NI BRAND and using the device “Sitting Bull” with respect to the CATTLE FEED / CATTLE FOOD, as class of people who purchased both the goods i.e. SEEDS as well as CATTLE FEED / cattle food are same or similar and they are purchasing the same from one shop and the consumer class is also same i.e. agriculturist and admittedly the original plaintiff is the prior user since last three decades and having reputation in entire nation, having a brand name [1] NANDI [2] NANDIBINI and [3] NANDI-12, the learned Chamber judge has rightly granted injunction against the defendants which in the facts and circumstances of the case is not required to be interfered with by this Court. Submitting accordingly, it is requested to dismiss the present Appeal From Order. 4.16. Heard the learned advocates appearing on behalf of the respective parties. 4.17. The appellant herein is the original defendant No. 1 and the Respondent No. 1 herein is the original plaintiff. The plaintiff has instituted Regular Civil Suit No. 977 of 2008 in the City Civil Court at Ahmedabad against the defendant for perpetual injunction alleging infringement of the trademark, copy right and for passing off action as well as for damages mainly alleging inter-alia that the plaintiff is a registered partnership firm engaged in the business of producing, selling and marketing various kinds of SEEDS under the name and style of New Nandi SEEDS Corporation. That the defendant No. 1 M/s. Anant Oil Industries is doing business of CATTLE FEED etc. at Kadi, Distsrict Mehsana. That the plaintiff applied on 26/9/1979 for registration of the trade mark containing and consisting of the word “NANDI” and device of “Seating Bull” under application No. 353869 for goods “SEED” included in Class-31. That the defendant No. 1 M/s. Anant Oil Industries is doing business of CATTLE FEED etc. at Kadi, Distsrict Mehsana. That the plaintiff applied on 26/9/1979 for registration of the trade mark containing and consisting of the word “NANDI” and device of “Seating Bull” under application No. 353869 for goods “SEED” included in Class-31. It was contended by the plaintiff that the objections as provided in Section 20 of the Trade Mark Act (hereinafter referred to as “the Act”) were invited by publishing notice by the Registrar of Trade Marks in Trade Mark Journal No. 779. That thereafter, the trade mark “NANDI” came to be registered by the office under registration No. 353889 under Section 23 of the Act and issued certificate to that effect on 28/2/1983. It is also the case on behalf of the plaintiff that the plaintiff also obtained registration of “NANDIBINI” and “NANDI” on 26/9/1979 and 27/4/1989 respectively. It is the case on behalf of the plaintiff that therefore, the plaintiff has a statutory right to use the said names and trade names exclusively and to restrain others from using the said names and marks in any manner as provided in secs.27 to 29 of the Act. As per the plaintiff, the plaintiff has also obtained registration of their artistic titled “NANDI BINI” under the Copy Rights Act and therefore legally entitled to restrain others from using the said name under the provisions of Section 51 of the Copy Rights Act. As per the plaintiff the plaintiff came across an advertisement of the application No. 1328538 in the Trade Journal No. 1370 dtd.16/6/2007 given by the defendant No. 1 for registration of mark “NANDI NI BRAND” with device of “SITTING BULL” for the goods “Sall types of CATTLE FEED” included in Class-31 and therefore, the plaintiff has lodged objections before the Registrar of Trade Marks as per under Section 21 of the Act. It is the case on behalf of the plaintiff that on inquiry it was learnt that the defendant No. 1 is selling CATTLE FEED / food in various parts of the State including Ahmedabad under trade mark “NANDI NI BRAND”. It is the case on behalf of the plaintiff that on inquiry it was learnt that the defendant No. 1 is selling CATTLE FEED / food in various parts of the State including Ahmedabad under trade mark “NANDI NI BRAND”. It is also the case on behalf of the plaintiff that adoption of the mark “NANDI NI BRAND” or the device of “SITTING BULL” by the defendant No. 1 is not bonafide; appears to be deliberate, malafide and intentional with a view to pass off their CATTLE FEED / FOOD as the goods of the plaintiff. As per the plaintiff such goods of the defendant No. 1 are also found selling in the market by the traders who are otherwise selling the plaintiff’s “NANDI SEEDS” since last number of years. Therefore, the plaintiff has filed the aforesaid suit for infringement of Trade Mark, copy right and for passing off action. 4.18. Thus, from the aforesaid it is apparent and which cannot be disputed by the plaintiff that the plaintiff has registered trade mark “NANDI” and “SITTING BULL” and “NANDIBINI” for the goods “SEEDS” only. The “SEEDS” is included in Class 31. Admittedly the defendant No. 1 is selling the goods “CATTLE FEED / food” only and has applied for registered trade mark. “NANDI NI BRAND” with the device of “SITTING BULL” for the goods of “all types of CATTLE FEED”. As stated hereinabove, the plaintiff is selling “SEEDS” only and is not in the business of CATTLE FEED / feed. Similarly, the defendant No. 1 is in the business of CATTLE FEED / food only and not in the business of SEEDS. 4.19. In the back drop of the above facts, certain statutory provisions are required to be considered and referred to. 4.20. Section 28 of the Trade Marks Act confers right in favour of the registered proprietor of the trade mark and it provides that registration of a trade mark 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 or services in respect of which trade mark is registered and to obtain relief in respect of infringement of trade mark in the manner provided by the Act. Thus, as per Section 28 a registered proprietor of the trade mark has exclusive right to use the trade mark only in relation to the goods or services in respect of which the trade mark is registered. Thus, considering Section 28 of the Act, the plaintiff who is having the registered trade mark registered “NANDI” and “SITTING Bull” for the goods of “SEEDS” falling in Class 31, has exclusive right to use the said trade mark with respect to the goods “SEEDS” only and he has got exclusive right to obtain relief in respect of the infringement of the trade mark. Therefore, considering Section 28 of the Act, if another person is selling the goods “SEEDS” having the word NANDI and device of “SITTING Bull”, considering Section 28 of the Act, the plaintiff, who is having registered trade mark of the word “NANDI” and device of “SITTING Bull”, has an absolute right to sue against the person and pray for relief in respect of infringement of the said trade mark. 4.21. Section 29 of the Act defines infringement of a registered trade mark. As per Sub-section (1) of Section 29, a registered. Trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. Meaning thereby if a person uses the mark which is identical with or deceptively similar to with respect to goods it can be said that there is infringement of registered trade mark. 4.22. Meaning thereby if a person uses the mark which is identical with or deceptively similar to with respect to goods it can be said that there is infringement of registered trade mark. 4.22. Sub-section (2) of Section 29 is also with respect to infringement of registered trade mark, which provides that if a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of— (a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or (b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or (c) its identity with the registered trade mark and the identity of the goods of services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark. Thus, Sub-section (2) of Section 29 is with respect to similarity of goods. However, Sub-section (4) of Section 29 is an exception to Section 28 and Sub-sections (1) and (2) of Section 29. As stated hereinabove, Section 28 and Sub-section (1) and (2) of Section 29 is with respect to the same goods or similar goods. 4.23. Sub-section (4) of Section 29 is in relation to the goods or services which are not similar to those for which the trade mark is registered. As per Sub-section (4) of Section 29 a registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade a mark which— (a) is identical with or similar to the registered trade mark; and (b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and (c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. 4.24. Now, in the backdrop of the above statutory provisions and the aforesaid facts, present Appeal From Order is required to be considered by this Court. 4.24. Now, in the backdrop of the above statutory provisions and the aforesaid facts, present Appeal From Order is required to be considered by this Court. On considering the impugned order passed by the learned Chamber Judge it appears that the learned Chamber Judge has granted injunction against the defendant No. 1 and in favour of the plaintiff mainly relying upon Section 29(4)(b) of the Trade Marks Act. As stated above, Sub-section (1) and (2) of Section 29 would not be applicable and is rightly not made applicable by the learned Chamber Judge as admittedly trade mark in favour of the plaintiff is with respect to the goods “SEEDS” and defendant No. 1 is in the business and selling goods named “NANDI NI BRAND” with respect to the goods “CATTLE FEED / food”. Thus, the mark which is used by the defendant No. 1 is in respect to and/or in relation to the goods other than the goods “SEEDS” of which trade mark is registered. Therefore, the question which is posed for consideration of this Court is, that while applying Sub-section (4) of Section 29, and using the mark and using the registered trade mark and the mark similar to registered trade mark with respect to other goods of which there is a registered trade mark, what will be the requirement and what conditions are required to be satisfied. 4.25. On fair reading of Sub-section (4) of Section 29 of Section 29 for attracting the said provision, it appears that only in a case where a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade a mark which, (a) is identical with or similar to the registered trade mark; and (b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and (c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to the distinctive character or repute of the registered trade mark. Thus, the plaintiff must prove that all the conditions mentioned in Sub-section (4) of Section 29 are satisfied. Thus, the plaintiff must prove that all the conditions mentioned in Sub-section (4) of Section 29 are satisfied. Therefore, before alleging infringement of trade mark and praying for injunction against the defendant which is using the mark with respect to the other goods, the plaintiff has to satisfy and prove that such a mark is identical with or similar to the registered trade mark and registered trade mark has a reputation in India and use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. Therefore, the plaintiff has to aver and prove that his registered trade mark has a reputation in India. It is not the case of the plaintiff and it is not averred by the plaintiff that its registered trade mark “NANDI” and device “Seating Bull” has a reputation in India. 4.26. Mr. P.M. Thakkar, learned Senior Advocate appearing on behalf of the plaintiff has tried to submit that what is provided in Clause (c) of Sub-section (4) of Section 29 is that such registered trade mark should have a reputation in India and not all over India. Such a submission and contention has no substance at all. On fair reading of Clause C of Sub-section (4) of Section 29, reputation in India should be given a broader interpretation i.e. reputation “all over India.” As such, there is no broad distinction between “reputation in India” and “reputation all over India”. “reputation in India” means “reputation in India” and “in India” should always be construed as “all over India”. It is to be noted and as observed hereinabove that Sub-section (4)29 is exception to Sub-section (1) and (2) of Sections 28 and 29. As stated hereinabove, normally, a registered trade mark is presumed to have been infringed with respect to and/or in relation to the goods of which the trade mark is registered and/or with respect to the similarity of the goods. As stated above, even Section 28 also confers right in favour of a registered proprietor of the trade mark in relation to the goods or services in respect of which trade mark is registered. As stated above, even Section 28 also confers right in favour of a registered proprietor of the trade mark in relation to the goods or services in respect of which trade mark is registered. Therefore, when Sub-section (4) of Section 29 is an exception and which gives additional right in favour of a registered trade mark, such a registered proprietor of the trade mark has to prove, that it’s registered trade mark has a reputation in India/all over India. Such is not the case pleaded by the plaintiff. In the present case it appears that the learned Chamber Judge has not properly appreciated and drawn distinction between Sub-sections (1) and (2) of Section 29 and that of Sub-section (4) of Section 29 of Trade Marks Act and only by referring to Clause (c) of Sub-section (4) of Section 29, has granted the injunction, with respect to using the mark “NANDI NI BRAND with respect to the other goods i.e. “CATTLE FEED/FEED”. It appears that without proving and/or alleging and/or making averments that the registered trade mark has a reputation in India, a registered proprietor of the trade mark in relation to a particular goods or services cannot allege infringement of its trade mark by using the similar mark in relation to other goods. To confer such right would tantamount to even granting registered trade mark with respect to the goods for which there is no prayer and/or for which the said proprietor has not applied for the registration of the Trade 4.27. At this stage decision of the Hon’ble Supreme Court in the case of Vishnudas Trading (Supra) is required to be considered. In the case before the Hon’ble Supreme Court, registered proprietor of the trade mark in respect of “manufactured tobacco” falling in Class 34 of the 4th Schedule to the rules framed under the Trade Mark Act, 1940 and 1950 Act alleging infringement who was manufacturing the Cigarette under the brand name “Charminar” alleging infringement by the appellant Company by using the mark “Charminar” on his bottles and boxes of quiwam and zarda. It was found that the registered trade proprietor of trade mark / name “Charminar” was manufacturing Cigarettes only and did not manufacture anything other than Cigarette and though registered trade mark was in respect of “manufactured tobacco”, the Hon’ble Supreme Court observed that the registration of the trade mark by manufacturer manufacturing only Cigarette under the said broad classification and manufacturer having not bonafide intention to trade in or manufacturer other goods or articles falling under the said broad classification, he cannot be permitted to enjoy monopoly in all articles carrying under such classification. At this stage it is required to be noted that in the case before the Hon’ble Supreme Court even registered proprietor was having registered trade mark under the broad classification of “manufactured tobacco” still the Hon’ble Supreme Court observed as stated hereinabove. 4.28. In the present case, admittedly the registered trade mark NANDI and device of SITTING Bull is with respect to goods “SEEDS” falling in class 31 of the Schedule and not with respect to other items / goods provided in Class 31 of the Schedule more particularly CATTLE FEED / food which is also falling in Class 31. It is true that in Para 48 of the said judgement, the Hon’ble Supreme Court has clarified that the said decision is with respect to ratification application and the court is not considering anything with respect to infringement of trade mark and/or passing off. However, the observations of the Hon’ble Supreme Court are very much relevant. Even otherwise, as stated hereinabove, all the conditions which are mentioned in Sub-section (4) of Section 29 are not fulfilled and/or satisfied and therefore, it appears that the learned Chamber Judger has committed an error in granting injunction in favour of the plaintiff restraining the appellant “defendant No. 1 from using the mark “NANDI NI BRAND” and SITTING Bull with respect to goods “CATTLE FEED / FOOD”, for which there is no registered trade mark in favour of the plaintiff. It prima facie appears that the learned Chamber Judge has committed an error in bringing the case within Sub-section (4) of Section 29 of the Trade marks Act in absence of any case on behalf of the plaintiff that its registered trade mark “NANDI” and “SITTING Bull” with respect to goods “SEEDS” has a reputation in India/All Over India. It prima facie appears that the learned Chamber Judge has committed an error in bringing the case within Sub-section (4) of Section 29 of the Trade marks Act in absence of any case on behalf of the plaintiff that its registered trade mark “NANDI” and “SITTING Bull” with respect to goods “SEEDS” has a reputation in India/All Over India. Under the circumstances, the impugned order deserves to be quashed and set aside. 4.29. In view of the above findings and observations, the decisions relied upon by the learned advocates appearing on behalf of the respective parties more particularly original plaintiff with respect to delay and other aspects with respect to similarity etc. are not required to be gone into by this Court and therefore, this Court is not further dealing with all the judgements relied upon by the learned advocates appearing on behalf of the respective parties referred to hereinabove. 4.30. In view of the above and for the reasons stated hereinabove, the Appeal From Order succeeds. The impugned order dated 27/8/2008 passed by the learned Chamber Judge, City Civil Court at Ahmedabad below Notice of Motion Ex.7 in Civil Suit No. 977 of 2008 is hereby quashed and set aside. In the facts and circumstances of the case, there shall be no order as to costs. In view of above order in the Appeal From Order, no further order is required in the Civil Application and the Civil Application is also accordingly disposed of. 4.31. At this stage Mr. P.M. Thakkar, learned Senior Advocate appearing on behalf of the original plaintiff has prayed to stay the operation of present judgement so as to enable the plaintiff to approach the higher forum, however, considering the facts that even the learned Chamber Judge stayed the impugned order of injunction, to enable the defendant No. 1 to approach this Court and thus there was no injunction in operation either during the Notice of Motion or till the present Appeal From Order is heard by this Court and when this Court has set aside the order of injunction granted by the learned trial court, the request to stay the execution of the present judgement is rejected. P P P P P