Judgment :- Asim Kumar Mondal, J. In the instant appeal the appellant/plaintiff challenges the impugned order dated July 17, 2012, passed by the learned 5th Additional District Judge, at Alipore in T.S. no.7 of 2012 whereby the learned Judge refused to grant ad interim injunction to the appellant against the respondents. The plaintiff is a private limited company incorporated under the Companies Act, 1956, having its registered office at 334, Joshor Road, Kalindi, Kolkata-89 and, also, a place of business at P111, Kalindi Housing Estate Calcutta-89. The plaintiff is an established Hotel running a business of, inter alia, providing hotel and lodging services since 1974. The plaintiff’s principal hotel is situated at Digha under the name and style of Hotel “SEA HAW K”. The said hotel of the plaintiff has grown to become a popular name in the hotel business. The trade name “SEA HAWK”/”HOTEL SEA HAWK” is being used by the plaintiff since 1974. The plaintiff obtained registration of the trade mark “SEA HAW K” (word) under the numbers 1261503 in class 42 of Schedule IV of Trademarks Act, 1999 with effect from January 16, 2004. The defendant/respondent is, also, engaged in similar business of running a hotel in coastal city of Puri in the State of Orissa. From the various state magazines, the plaintiff, in course of its business, came to know that the respondent/defendant runs a hotel under identical name as that of the plaintiff’s hotel “SEA HAW K” at Puri, Orissa. The plaintiff requested the respondent to change the name its hotel to avoid confusion amongst the relevant section of trade and public. The respondent assured the plaintiff that it will change the name its hotel in due course. The respondent merely added the word “new” to the same making it “HOTEL NEW SEA HAW K”. The respondent illegally and dishonestly adopted the trade name “HOTEL NEW SEA HAWK” by copying the registered trade mark “SEA HAWK” of the plaintiff. The defendant/respondent claims to have opened hotel “SEA HAWK” at Puri in good faith corrected its name from “SEA HAWK” to “NEW SEA HAWK”, which is/was calculated to cause confusion among the general public, who presumed the hotel of the respondent to be a new hotel built by the plaintiff at Puri and due to which the plaintiff has suffered and still continues to suffer loss and prejudice. The plaintiff filed a suit for “passing off” of under Section 105 (c) of the Trade and Merchandise Marks Act, 1958, before learned District Judge at Alipore being T.S. No. 97 of 1995 (subsequently re-numbered as T.S. no.1 of 1995) for decrees for permanent injunction and damages. The said T.S. no.1 of 1995 was dismissed. On context, it was, inter alia, held that the court had no territorial jurisdiction to entertain the suit; the suit was hopelessly barred by limitation; “SEA HAWK” was not a trade mark as a hotelier private services (and does not trade in goods); the trade and Trade and Merchandise Marks Act, 1958, does not give protection against copying of business names. Being aggrieved and dissatisfied by the said judgment and decree passed by learned 5th Additional District Judge, at Alipore, the appellant/plaintiff preferred an appeal before this Court being FAT No.2213 of 2000 and the same is awaiting disposal. The appellant/plaintiff obtained registration of its trade name “SEA HAW K” during the pendency of the aforementioned appeal. Thus, the registration of its trade name “SEA HAW K” confers the plaintiff’s statutory right over its trade mark/trade name under the Section 28 of the trade marks Act, 1999. The adoption and unauthorised use of the identical/deceptively similar trade mark in respect of same class of services by the respondent is in violation of rights of plaintiff and continues infringement and passing off the trade mark “SEA HAW K” “word” of the appellant. The plaintiff filed a suit being T.S. no. 25 of 2001 (subsequently renumbered as T.S. no. 7 of 2012) for infringement of plaintiff’s trade registered marks number 1261503. The plaintiff prayed for a decree of permanent injunction and decree for trade up business papers, sign boards, brochures, pamphlets, blocks, dies and the like materials and also for damages. The plaintiff, also, prayed for by filing an application for injunction till the pendency of the suit restraining the respondent and their men from infringing the registered trade mark. . The plaintiff prayed for a decree of permanent injunction and decree for trade up business papers, sign boards, brochures, pamphlets, blocks, dies and the like materials and also for damages. The plaintiff, also, prayed for by filing an application for injunction till the pendency of the suit restraining the respondent and their men from infringing the registered trade mark. . On the contrary, the defendant/respondent contested the petition filed by the plaintiff praying for injunction under Order 39, rules 1 and 2 of Civil Procedure Code before learned court below on the plea that the suit has been barred by principles of res judicata as plaintiff filed T.S. no.97 of 1995 against the respondent on the same self-issue, which has been dismissed and appeal has been pending before this Court. The defendant has no connection or concern with an establishment of carrying on business or running of hotel at Digha. The defendant has been running its business at Puri in a State of Orissa. The defendant in various advertisements and leaflets has categorically stated that it has no connection with hotel “SEA HAWK” at Digha or it has no branch. So the question of misleading the public did not and could not arise. Further, in hotel business there cannot be any exclusive copyright. The proprietor of the defendant started business at Puri. He had no knowledge as to the carrying of any business under the name and style “HOTEL SEA HAW K” and as soon as the plaintiff raised objection in this regards, the name of the hotel “SEA HAW K” at Puri was changed to hotel “NEW SEA HAWK”, which should bona fide of the defendant. Further, trade mark/logo of the plaintiff is that of a “FLYING SEA GULL” and the defendant’s mark has been totally different. The learned Judge rejected the plaintiff’s application for injunction on the ground that appeal against the decree in the earlier suit has been pending in this Court and passing of any order in the present suit would lead multiplicity of proceedings and amount to interference with the appeal pending before this Court. The learned Judge rejected the plaintiff’s application for injunction on the ground that appeal against the decree in the earlier suit has been pending in this Court and passing of any order in the present suit would lead multiplicity of proceedings and amount to interference with the appeal pending before this Court. The moot question in the present appeal, as it appears from the pleadings of the parties before the court below, is that whether the learned Judge failed to appreciate that the injunction application filed by the appellant was for infringement of a register trade mark and not against “passing off” of an unregistered mark? Further, the learned Judge failed to appreciate the cause of action for “passing off” and cause of action for infringement are totally different and as such the principle of res judicata as under Section 11 of the Civil Procedure Code has got no application in the present case. Mr. Bachawat for the appellant has submitted that the Learned Judge failed to appreciate that the plaintiff being the registered proprietor and has the exclusive right to use the words trade mark “SEA HAWK” in respect of hotel and restaurant services either identifying or a conjunction or confusion with other words, marks, devices etc. It is, further, submitted that adopting the mark “HOTEL NEW SEA HAWK” by the respondent is nothing, but violation of the statutory rights of the plaintiff. The appellant is the registered proprietor of trade mark “SEA HAW K” in class 42 under the trade Mark Act, 1999, having conceived and adopted the mark in the year 1974 prior to the respondent and, therefore, is entitled to statutory protection of such mark. The injunction application was filed by the appellant for infringement of a registered trade mark and not against passing off an unregistered mark. The registered trade mark “SEA HAWK” is exclusively in respect of the plaintiff’s hotel and lodging services and none else. The plaintiff has been providing such services for last over three decades and has become a hallmark of excellence in a hotel business. It is, also, submitted that by virtue of long extensive and continuous user of said trade mark along with a huge publicity by way of advertisement in various medias, journals through Hoteliers Association the same acquired a secondary meaning within the trade/business among the public. It is, also, submitted that by virtue of long extensive and continuous user of said trade mark along with a huge publicity by way of advertisement in various medias, journals through Hoteliers Association the same acquired a secondary meaning within the trade/business among the public. So, the people throughout the country identifies the trade mark “SEA HAWK” and the name “HOTEL SEA HAWK” exclusively with the plaintiff’s hotel and lodging services and none else. The respondent is, also, engaged the similar business of running a hotel in the coastal city of Puri in the State of Orissa. The respondent runs the said hotel under an identical name as of the HOTEL SEA HAW K” at Puri. The respondent dishonestly and fraudulently copied the plaintiff’s trade mark “SEA HAWK” for its hotel in Puri knowing fully well that the plaintiff has been running its hotel by name “HOTEL SEA HAWK” since much prior to respondent. Mr. Bachawat has submitted that the trade mark “HOTEL NEW SEA HAWK” of the respondent is creating confusion and deception among the general public, who presumed hotel of respondent to be a new hotel built by the plaintiff at Puri and due to which the plaintiff has suffered and since continue to suffer loss and prejudice. Mr. Bachawat, submitted that learned Judge wholly ignored the case for an injunction made out by the appellant under a fresh cause of action based on new facts. The word “new” as used in the trade mark of the respondent’s hotel business is simply qualifies the words “SEA HAWK”, which is an essential/identifying feature of the appellant’s trade mark. Mr. Bachawat, in support of his submission, has relied upon the following decisions:- 1. Allergan Inc, Appellant Vs Milment of the Industries and ors, Respondents. Reported in AIR 1998 Calcutta 261. 2. Pratyush Kumar Jana & Anr…. Appellants Vs New Howrah Bakery (Bapuji) Private Ltd……Respondent. Reported in 2009 (40) PTC 442 (Cal) (DB). 3. Appellants:M/s Bengal Waterproof Limited Vs Respondent:M/s Bombay Waterproof Manufacturing Company and Another. Reported in AIR 1997SC1398. 4. Appellant M/s. Power Control Appliances and others Vs M/s. Sumeet Machines Pvt. Ltd. with Sumeet Research and Holdings Vs Sumeet Machines and Another Respondent. Reported in AIR 1994 SCW 2760 : JT 1994 (2) SC 70: (1994) 1 SCALE 446: (1994)2 SCC 448 : (1994)1 SCR 708. 5. Appellants: Hindustan Pencils (P) Ltd. Vs Respondent: India Stationery Products Co. 4. Appellant M/s. Power Control Appliances and others Vs M/s. Sumeet Machines Pvt. Ltd. with Sumeet Research and Holdings Vs Sumeet Machines and Another Respondent. Reported in AIR 1994 SCW 2760 : JT 1994 (2) SC 70: (1994) 1 SCALE 446: (1994)2 SCC 448 : (1994)1 SCR 708. 5. Appellants: Hindustan Pencils (P) Ltd. Vs Respondent: India Stationery Products Co. and Anr. Reported in AIR 1990 Delhi 19, 1989 (2) ARBLR 72 (Delhi), 38 (1989) DLT54. 6. Laxmidkant V. Patel… Appellant Vs Chetanbhat Shah & Anr…. Respondents. Reported in 2002 (24) PTC 1 (SC). 7. Amar Nath Chakroborty….Appellant Vs Dutta Bucket Industries & Ors… Respondents. Reported in 2005 (30) PTC 496 (Cal). 8. Appellants:Kali Aerated Water Works, Tiruchirapalli Vs Respondent: Rashid and Ors. Reported in AIR 1989 Mad 9 . Mr. Mullick appearing on behalf of the respondent, in reply, submits and argued that the instant suit is barred by the principles of res judicata. A suit being T.S. no.97 of 1995 was filed by the plaintiff against the present defendant, which was dismissed and an appeal has been preferred before this Court and same is still pending. In the instant case, the plaintiff has taken a plea that a fresh cause of action has arisen for institution of the suit and as such the application for injunction is, also, barred. Mr. Mullick, further, submits that defendant/respondent has obviously no concern or connection with the hotel business in the name and style “HOTEL SEA HAW K” at Digha. The respondent runs the “HOTEL NEW SEA HAWK” at Puri in the State of Orissa independently and its authorise advertisement and brochures especially stated that it has no connection with the “HOTEL SEA HAW K”, Digha and it has no branch. The question of misleading the public does not arise. On the contrary, Mr. Mullick submitted that public has been notified in clear and equivocal terms that the said two Hotels are totally different. He has placed one photocopy of advertisement published in a Magazine in the name of “HOTEL NEW SEA HAW K” (Puri) with a note that it has got no branch. Mr. On the contrary, Mr. Mullick submitted that public has been notified in clear and equivocal terms that the said two Hotels are totally different. He has placed one photocopy of advertisement published in a Magazine in the name of “HOTEL NEW SEA HAW K” (Puri) with a note that it has got no branch. Mr. Mullick submits that in hotel business, almost all hotels runs in the same manner of services, that is, providing accommodation and facilities to various customers, and, therefore, there cannot be any exclusive copy right in so far as the services are rendered to the customers by any hotel. It is, also, submitted that the proprietor of the hotel at Puri have no knowledge as to the carrying on of any business of the plaintiff under the name and style of “HOTEL SEA HAWK” when the respondent started his business at Puri. On the request of the plaintiff the name of HOTEL SEA HAW K” at Puri is changed to “NEW HOTEL SEA HAWK”, which shows the bone fide of the respondent and its proprietor. Mr. Mullick, also, draws our attention, after placing the photocopies of trade mark and logo of hotel “SEA HAWK” at Digha, and “NEW HOTEL SEA HAWK” at Puri, and submitted that the logo of the plaintiff is that of a “FLYING SEA GULL” and that the respondent’s concerned is totally different. Mr. Mullick submitted that the plaintiff got registered trade mark for “services” under the Act during the pendency of the appeal against the decree passed in TS No.97 of 1995 in the year 2003. The present suit was filed after 7 (seven) years on the grab of new cause of action. There is nothing to show what prevented the plaintiff to bring the present suit at an earlier occasion and as such the present suit is barred. Mr. Mullick, also, denied that the “HOTEL SEA HAWK” and the “HOTEL NEW SEA HAWK” are phonetically or structurally identical. The writing of the two separate names “SEA HAWK” and “NEW SEA HAWK” are totally different. Mr. Mullick, further, submits that the respondent has got no dishonest intention against such trade mark of plaintiff. The respondent has been using self-same name and logo for over 24 (twenty four) years and has acquired reputation of its own. The respondent has caused no confusion or deception in the mind of anyone. Mr. Mullick, further, submits that the respondent has got no dishonest intention against such trade mark of plaintiff. The respondent has been using self-same name and logo for over 24 (twenty four) years and has acquired reputation of its own. The respondent has caused no confusion or deception in the mind of anyone. A list of different companies is handed-over to us, containing as many as 7 (seven) businesses/ trade names in the style “SEA HAW K”. Mr. Mullick submitted that there are various hotels having almost same name at Digha itself. There is a Hotel named “SEA GULL” at Digha. People do not get confused by the names, when “HOTEL NEW SEA HAW K” specifically advertises that it has no connection with “HOTEL SEA HAWK” at Digha and that it has no branch. The name was changed to “NEW SEA HAWK” to avoid causing any confusion or deception. Finally, Mr. Mullink submitted that alleged cause of action has arisen at least 24 (twenty four) years ago when hotel “NEW SEA HAW K” started functioning at Puri and as such there is no immediate necessity to grant any order of injunction. Mr. Mullick placed his reliance on the following decisions, in support of his submissions:- 1. Midas Hygiene Industries P. Ltd. & Anr… plaintiffs Vs Sudhir Bhatia & Ors…. Respondents. Reported in 2004 (28) PTC 121 (SC). 2. M/s. Johnson & Johnson Vs. Christine Hoden India (P) Ltd. Reported in AIR 1988 Delhi 249. 3. Gopal Hossiery, Applicant Vs. The Dy. Registrar of Trade Marks and ors. Respondents. Reported in AIR 1981 Cal 53 . 4. Shri Gopal Engg. & Chemical Works, Plaintiff Vs. M/s. POMX Laboratory, Respondent. Reported in AIR 1992 Delhi 302. 5. International Association of Lions Clubs Vs. Association of Lions India & Ors. Reported in AIR 2008 (NOC) 124 (BOM.) 6. Kewal Krishan Kumar Vs. M/s. Rudi Roller Flour Mills (P) Ltd. & Anr. Reported in AIR 2008 (NOC) 125 (DEL.) 7. Charak Pharmaceuticals (India) Ltd. and Anr. Vs. Glenmark Pharmaceuticals Ltd. Reported in AIR 2008 (NOC) 1285 (BOM.) = 2008 (2) AIR Bom R 508. 8. New Hope Food Industries (P) Ltd. Vs. Kewal Krishan Kumar Vs. M/s. Rudi Roller Flour Mills (P) Ltd. & Anr. Reported in AIR 2008 (NOC) 125 (DEL.) 7. Charak Pharmaceuticals (India) Ltd. and Anr. Vs. Glenmark Pharmaceuticals Ltd. Reported in AIR 2008 (NOC) 1285 (BOM.) = 2008 (2) AIR Bom R 508. 8. New Hope Food Industries (P) Ltd. Vs. Pioneer Bakeries (P) Ltd. Reported in AIR 2008 (NOC) 987 (MAD.) We find from the judgment impugned that learned court below has observed that the issues settled in the earlier suit being T.S. no.1 have been same with the issues of the present suit and both the suits have been filed between the same parties. The only new ground has been stated in the present suit is a new cause of action. Learned court below has, also, observed and opined that as there is an appeal being F.A.T. No.169 of 2000 pending before High Court and the same is ready for hearing. Under such circumstance the court below did not find any urgency for passing any temporary order of injunction with an observation that new ground could, also, be placed at the time of hearing of the said appeal due to change of amendment of law. The court below, also, apprehended that if a temporary order of injunction be passed, there would be multiplicity of proceedings and it might amount to interference with the appeal pending before this Court. This suit is filed alleging infringement of a registered trade mark and not against passing off an unregistered mark. The earlier suit was based on passing off unregistered trade mark, which was dismissed and appeal is pending before this Court. The infringement of trade mark is a statutory action under Section 29 of the Trade Marks Act, 1999. The plaintiff got his trade name registered in the year 2006 under the Trade Mark Act, 1999, and took action against the respondent/defendant alleging infringement of its trade mark by him in the present suit. Admittedly, plaintiff is carrying on hotel business at Digha in the name and style “HOTEL SEA HAWK” since long. The respondent/defendant started his hotel business at Puri in the same name and style and subsequently, after being requested by the plaintiff/appellant the respondent changed name of the hotel by adding the word “NEW ”. Admittedly, plaintiff is carrying on hotel business at Digha in the name and style “HOTEL SEA HAWK” since long. The respondent/defendant started his hotel business at Puri in the same name and style and subsequently, after being requested by the plaintiff/appellant the respondent changed name of the hotel by adding the word “NEW ”. We, thus, hold, prima facie, that the observation of the learned Judge that this suit has been barred by principle of res judicata may not be sustained. It requires a full-fledged trial. Still, we are of the opinion that by passing an order of temporary injunction complete closure of the business of the hotel New Sea Hawk is not warrant as the balance tilts in favour of the respondent. The respondent is certainly running the business for long and even changed the name of the hotel at the request of the appellant. In the advertisements, also, the respondent clearly stated that it is not a sister concern of the appellant. Under the circumstances, we feel that justice will be sub-served if this appeal is disposed of with the following directions: (a) The respondent shall insert in all their advertisements and in all their papers that the Hotel New Sea Hawk, Puri, is no way connected or related with the Hotel Sea Hawk, Digha. They shall, also, specifically mention that Hotel New Sea Hawk, Puri, is not a sister concern of Hotel sea Hawk, Digha. (b) To maintain the audited accounts of the business of Hotel Sea Hawk, Puri, and to submit such accounts quarterly in the court below. We request the court below to expedite the hearing of the suit and to dispose of the same as early as possible without granting any unnecessary adjournment either of the parties. We trust as hope that the suit shall be disposed of six months from the date of communication of the order. We make it clear that we have not gone in to merits of the issues involved in the suit. The observations made, as above, are limited for the purpose of disposing of the present appeal. The court below shall dispose of the suit independently without being influenced by either his earlier observations made in the impugned order or by any observations of this Court made as above. The appeal is, thus, disposed of. We make no order as to costs. Subhro Kamal Mukherjee, J. I agree.