JUDGMENT 1. The challenge by means of this Appeal by the defendant filed under Section 96 of the Code of Civil Procedure, 1908, is to the impugned judgment of the dated 09.07.2013 passed by the Principal District Judge, Tiruppur, in O.S. No. 33 of 2012 decreeing the suit granting injunction restraining him from passing off action by way of running the coaching centre in the name and style of "Puthiya Polivudan Puthiya Idathil Vivekananda Coaching Centre". 2. The case of the plaintiff is that he is the Proprietor of Vivekananda Coaching Centre. It is stated that his father one A.Sellamuthu, who was employed in Sainik School, Amarvathi Nagar, as a Hostel Superintendent, entered into an agreement for sale on 25.7.1996 with one G.B. Gopinath and he was put in possession of the property on the same date. As per wish of his father, during December, 1997, the plaintiff started the educational institution in the suit property in the name and style of "Vivekananda Coaching Centre" housing the same at Door No. 15/81, near Forest Bungalow, Amaravathy Nagar, Udumalpet. Subsequently, a sale deed was executed on 22.7.1998 in favour of the plaintiff and his younger brother pursuant to the agreement dated 25.7.1996. The plaintiff also had put up a RCC Building and was running the Coaching Centre successfully since 1997. 3. It is also averred by the plaintiff that the defendant was working as a Mathematics Teacher in the plaintiff's Coaching Centre between the period from 1999 and 2010 with an initial pay of Rs.5000/- per month which was gradually increased to Rs.10,000/-. According to the plaintiff, approximately, about 70 students were trained each year and the students of the plaintiff's Coaching Centre were successful in getting admission in the Sainik School. Likewise, during December 2011, the plaintiff's Coaching Centre was training students who wanted to join the Sainik Schools in India. It is alleged by the plaintiff that the defendant while was in employment with the plaintiff, without his knowledge, indulged in malpractices for which the defendant was warned by the plaintiff several times. While so, the plaintiff received a notice dated 12.6.2010 from one Liakath Ali stating that the defendant had demanded a lump sum of Rs.1,50,000/- as bribe for admission of his son Shah Navas Ali, one of the students. While so, the plaintiff received a notice dated 12.6.2010 from one Liakath Ali stating that the defendant had demanded a lump sum of Rs.1,50,000/- as bribe for admission of his son Shah Navas Ali, one of the students. As the plaintiff was disturbed by the attempt of the defendant, he paid the salary and dismissed the defendant from his services. Enraged by the act of dismissal, out of vengeance and jealousy, the defendant started a Coaching Centre during April 2011 with a name of Institution as “Puthiya Polivudan Puthiya Idathil Vivekananda Coaching Centre" at Sayapattarai Main Road of Amaravathi Nagar Post, Udumalpet Taluk. According to the plaintiff, by keeping the same name for the new institution, the defendant was deliberately causing confusion in the minds of the innocent students and the parents of their wards and he expressed his mala fide intention. The further case of the plaintiff is that the defendant, being the past employee of the plaintiff's institution, has no right to use the same brand name as that of the plaintiff because the usage of the same would cause irreparable loss and damages to the plaintiff. Therefore, the plaintiff's father issued a notice to the defendant on 19.4.2011 for which the defendant also sent a reply to the plaintiff on 19.5.2011. 4. It is seen from the averments made in the plaint that the plaintiff had applied for registration of trade mark on 5th May, 2011 in class 41 in respect of providing training education and coaching in the name by the plaintiff as a Proprietor. The defendant who has got no locus standi to use the brand name of the plaintiff's Coaching Centre which is identical or desceptively similar to the plaintiff's trade name and there is also phonetical visual similarity between the two names. The plaintiff further contended that the defendant misused the trade name of the plaintiff and the defendant's passing off actions based on trade names are calculated to injure the goodwill of the plaintiff's institution. The plaintiff further claims that he is the earlier user of the trade name 'VCC' with reputation throughout India as one of the best Coaching Centres. The plaintiff further contends that if the defendant is allowed to use the same name, it will cause irreparable loss and serious prejudice to the plaintiff resulting in pecuniary loss. The plaintiff further claims that he is the earlier user of the trade name 'VCC' with reputation throughout India as one of the best Coaching Centres. The plaintiff further contends that if the defendant is allowed to use the same name, it will cause irreparable loss and serious prejudice to the plaintiff resulting in pecuniary loss. The usage of the same name by the defendant will cause confusion among the public injuring the plaintiff's Coaching Centre as two names were similarly designed as also phonetic similarity and there is every possibility of being deceived and the public are likely to be misguided. According to the plaintiff, it is the intentional act of the defendant to start the Coaching Centre in the same name with an attempt to divert the prospective students from the plaintiff's Coaching Centre. Therefore, the plaintiff filed suit for injunction restraining the defendant to passing off action by way of running the coaching centre in the name and style of “Puthiya Polivudan Puthiya Idathil Vivekananda Coaching Centre” as it is similar to the plaintiff known as “Vivekananda Coaching Centre” and for direction to the defendant to remove the board erected by him. 5. Resisting the suit, the defendant filed written statement denying the allegations made in the plaint. He has stated that he was not an employee under the plaintiff and he had not received any salary from him. The defendant also denied the allegation of the notice received by the plaintiff through the Principal of the Sainik School. The further case of the defendant is that he was not an employee but there was an oral agreement among the plaintiff and his brother Senthil and himself for jointly running the Coaching Centre. It is also contended by him that he had made an application for registration of the trade name as early as on 3rd February 2011 whereas the plaintiff had applied for the same only on 05.05.2011. All the documents and other allegations made by the plaintiff were all denied by the defendant. According to the defendant, the plaintiff's Coaching Centre was not Proprietoryship concern but a partnership business and that the defendant was a partner in the same. All the documents and other allegations made by the plaintiff were all denied by the defendant. According to the defendant, the plaintiff's Coaching Centre was not Proprietoryship concern but a partnership business and that the defendant was a partner in the same. The agreement was that the defendant was entitled to the share of 40% in the profit and the plaintiff was entitled to 40% while the brother of the plaintiff would be entitled to 20% out of the income of the said business. It is admitted by the defendant that he was a Mathematics Teacher in the institution while the plaintiff was an English Teacher. The defendant further contended that there is no basis for the suit for passing off or infringement action as the defendant had neither infringed nor passed off his services like that of the plaintiff. Therefore, the defendant cannot be said to have committed passing off action by running the coaching centre in the name and style of VCC. Therefore, the defendant claims that he had got all rights to claim and hold the name of VCC and as the defendant has got no right to challenge the generic name being used, prayed for dismissal of the suit. 6. The trial Court / learned Principal District Judge, Tiruppur, on the basis of the above pleadings, framing as many as three issues, proceeded with the trial of the suit. The proprietor of the plaintiff S.Radhakrishnan examined himself as P.W.1 besides examining one Sivakumar, Selvaraj and Senthilkumar as P.W.2, P.W.3 and P.W.4 respectively and marked Exs. A.1 to A.27. To nullify the evidence adduced on behalf of the plaintiff, the proprietor Muthusamy examined himself as D.W.1 and marked Exs. B.1 to B.10. Ex. C.1 was marked as Court document. 7. The learned trial Judge, appreciating the pleadings, as well as scanning the materials, finding that the name of the defendant’s Coaching Centre is identical with and deceptively similar to the plaintiff’s trade name and that there is phonetic and visual similarity between the names of the Coaching Centres started by the plaintiff as well as defendant, decreed the suit, by judgment dated 09.07.2013, declaring that the plaintiff is entitled for a decree as prayed for. The learned trial Judge also directed the defendant to remove the board near his coaching centre. Aggrieved by the same, the defendant has preferred this appeal. 8. Heard Mr. The learned trial Judge also directed the defendant to remove the board near his coaching centre. Aggrieved by the same, the defendant has preferred this appeal. 8. Heard Mr. R. Subramanian, learned Counsel appearing on behalf of the defendant / appellant and Mr. T.S. Vijayakumar, learned counsel for the plaintiff / respondent and perused the records. 9. The relief sought for in the suit is for grant of permanent injunction restraining the defendant from passing off action by way of running a coaching centre in the name and style of “Puthiya Polivudan Puthiya Idathil Vivekananda Coaching Centre”, which is similar to the plaintiff's institution viz., ”Vivekananda Coaching Centre”. Therefore, the question that has to be decided is whether the plaintiff is entitled to the reliefs sought for in the plaint on the evidence in the case? 10. According to the learned counsel for the appellant / defendant, there is no evidence on the side of the plaintiff which would justify the grant of decree as prayed for. However, learned counsel for the plaintiff / respondent contended that the evidence was adequate to support the decree for injunction as granted by the trial Court. 11. In order to succeed in his case, the plaintiff has to prove three ingredients in a passing off action. Firstly, he must establish a good will or reputation attached to the services he provides for the public. Secondly, the plaintiff has to demonstrate a mis-representation by the defendant to the public which leads or likely to lead the public to believe that the services (coaching) offered by him are the same as that of the plaintiff. Thirdly, the plaintiff has to establish that he suffers or likely to suffer damages by reason of the erroneous belief engendered by the defendant’s misrepresentation i.e., the defendant’s source of services is the same as that of the one offered by the plaintiff. 12. At the outset, it is necessary to consider whether the above elements have been proved by the plaintiff to entitle him to a decree for injunction. On the side of the plaintiff, P.Ws. 1 to 4 have been examined and the defendant had examined himself as D.W.1. 13. What is Good will? Ordinarily good will is acquired by trading. In the words of Lord Macnaghten “Good Will has no independent existence. It cannot subsist by itself. It must be attached to a business. On the side of the plaintiff, P.Ws. 1 to 4 have been examined and the defendant had examined himself as D.W.1. 13. What is Good will? Ordinarily good will is acquired by trading. In the words of Lord Macnaghten “Good Will has no independent existence. It cannot subsist by itself. It must be attached to a business. To destroy the business, the goodwill perishes with it though elements remain which may, perhaps, be gathered up and be revived again. Goodwill is thus the benefit and advantage of a name and get up and is the attractive force that brings business. 14. Regarding goodwill, the plaintiff has pleaded in paragraph 9 of the plaint as follows:- “.... The defendant misuse of the trade name of the plaintiff's and the defendant passing off actions based on trade name which is calculated to injure the goodwill of plaintiff's institution in the sense that there is a reasonable foreseeable consequence and which causes actual damage to a goodwill of the plaintiff's institution by the defendant the action is brought....” Again, in paragraph 12, the plaintiff has pleaded on good will in the following words:- “…. This institution earned a name and reputation throughout India and as one of the best coaching center. The defendant knowing this, in an attempt to divert the plaintiff coaching center, to him, made arrangements to start another coaching center at Saya Pattarai Main Road, Amaravathi Nagar Post, Udumalpet.” P.W.2 and P.W.4 also have spoken about the good will of the plaintiff’s coaching centre. Even according to the defendant, the coaching centre has been successful only because of his efforts. At this juncture, it would be relevant to refer to the deposition of D.W.1, who has stated in his cross-examination as under:- “Tamil” 15. Besides the admission of D.W.1 himself, it is also evident from the depositions of P.W.2 and P.W.4 that Vivekananda Coaching Centre of the plaintiff has already gained reputation in connection with its coaching and the defendant’s attempt to use the same name will cause confusion in the minds of introducing beneficiaries. If the defendant is allowed to use the same name and carry on the same business, it would definitely affect the business of the plaintiff. If the defendant is allowed to use the same name and carry on the same business, it would definitely affect the business of the plaintiff. Therefore, it is clear that the usage of the same name by the defendant is likely to deceive and divert the prospective students and is likely to cause confusion in the minds of the people. 16. Now, the question to be considered is whether the plaintiff had built up sufficient good will in his business associated with the name VCC that it should be protected against the damage to the same caused by the defendant by confusing or misleading using the same name. 17. In this regard, learned counsel for the plaintiff placed reliance on the decision rendered in Laxmikant V. Patel vs. Chetanbhai Shah and another [ 2002 (3) SCC 65 ] and relied on paragraph 10 of the judgment, which reads as follows:- “10. A person may sell his goods or deliver his services such as in case of a profession under a trading name or style. With the lapse of time such business or services associated with a person acquire a reputation or goodwill which becomes a property which is protected by courts. A competitor initiating sale of goods or services in the same name or by imitating that name results in injury to the business of one who has the property in that name. The law does not permit any one to carry on his business in such a way as would persuade the customers or clients in believing that the goods or services belonging to someone else are his or are associated therewith. It does not matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly, honesty and fair play are, and ought to be, the basic policies in the world of business. Secondly, when a person adopts or intends to adopt a name in connection with his business or services which already belongs to someone else it results in confusion and has propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury.” Learned counsel contended that prior usage over a period of time results in the generation of goodwill for the name. The plaintiff, being the prior user, is entitled to a decree and defeat the claims of the defendant. 18. The plaintiff, being the prior user, is entitled to a decree and defeat the claims of the defendant. 18. On the other hand, learned counsel appearing for the appellant / defendant placed his reliance on the decision in M/s Chennai Hotel Saravana Bhavan vs. M/s Hotel Saravana Bhavan, Srikalahasti reported in 2005 (3) ALT 789 wherein it has been observed as follows:- “Thus in a passing off action, the common law remedy, is for deceit viz., passing off by a person of his own goods as those of the another, whereas, the action for infringement is a statutory remedy, available to the registered proprietor of a registered trade mark for the vindication of the exclusive right to use that trade mark in relatiion to the goods manufactured by him and thus, the use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, whereas it is a must in the case of an action for infringement of the trade mark and the onus would be on the plaintiff to establish that the trade mark used by the defendant in the course of trade in the goods in respect of which his mark is registered, is deceptively similar. But, in the case of passing of, the defendant may escape the liability if he shows that the added matter is sufficient to distinguish his goods from those of the plaintiff. Thus, the essence of this ratio is that in an action for infringement of trade mark, it should be registered.” The above finding is based on the decision of the Hon'ble Supreme Court in M/s S.M. Dyecham Limited Vs. M/s Cadbury (India) Limited [ AIR 2000 SC 2114 ]. However, the ratio laid down therein is held to be not correct in law by the Hon’ble Apex Court in Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd. [ (2001) 5 SCC 73 wherein in paragraph 20, referring to Dyechem case (cited supra), it was observed as follows:- “Lastly, in Dyechem’s case (supra), it was observed in para 54 as under : "54. As to scope of a buyer being deceived, in a passing-off action, the following principles have to be borne in mind. Lord Romer, L.J. has said in Payton & Co. v. Snelling Lampard & Co. As to scope of a buyer being deceived, in a passing-off action, the following principles have to be borne in mind. Lord Romer, L.J. has said in Payton & Co. v. Snelling Lampard & Co. 1900 (17) RPC 48 that it is a misconception to refer to the confusion that can be created upon an ignorant customer that the courts ought to think of in these cases is the customer who knows the distinguishing characteristics of the plaintiff s goods, those characteristics which distinguish his goods from other goods in the market so far as relates to general characteristics. If he does not know that, he is not a customer whose views can properly be regarded by the Court. (See the cases quoted in N.S. Thread & Co. v. Chadwick & Bros. AIR 1948 Mad 481 which was a passing-off action.) In Schweppes Case 1905(22) RPC 601 (HL) Lord Halsbury said, if a person is so careless that he does not look and does not treat the label fairly but takes the bottle without sufficient consideration and without reading what is written very plainly indeed up the face of the label, you cannot say he is deceived." These observations appear to us to be contrary to the decision of this Court in Amritdhara case (supra) where it was observed that the products will be purchased by both villagers and townfolk, literate as well as illiterate and the question has to be approached from the point of view of a man of average intelligence and imperfect recollection. A trade may relate to goods largely sold to illiterate or badly educated persons. The purchaser in India cannot be equated with a purchaser of goods in England. While we agree that in trade mark matters, it is necessary to go into the question of comparable strength, the decision on merits in Dyechem s case (supra) does not, in our opinion, lay down correct law and we hold accordingly.” Therefore, the decision rendered in Saravana Bhavan case (cited supra) is a judgment rendered per incuriam. 19. The second aspect that needs consideration is the mis-representation by the defendant to the public. In assessing whether confusion or deception is likely, the Court has to see whether the defendant can be shown to have acted with a fraudulent intention, though such fraudulent intention may not be necessary for the cause of action. 19. The second aspect that needs consideration is the mis-representation by the defendant to the public. In assessing whether confusion or deception is likely, the Court has to see whether the defendant can be shown to have acted with a fraudulent intention, though such fraudulent intention may not be necessary for the cause of action. In arriving at the conclusion, it is necessary to consider the following aspects:- 1. the nature and extent of the reputation relied on; 2. the field of activity the plaintiff and the defendant carry on business; 3. similarity of the name used by the defendant to that of the plaintiff; 4. the manner in which the defendant used the name; and 5. manner in which the business is carried on i.e., how the customers will be deceived 20. In this regard, it would be appropriate to refer to the averment made by the plaintiff in his plaint on the ground of mis-representation by the defendant. The relevant passage, which is found in paragraph 7 of the plaint may be usefully extracted below:- “The plaintiff submits that in the month of April, 2011, the defendant has started a coaching centre with the same name and style of plaintiff's coaching centre namely “Vivekananda Coaching Centre at Sayapattarai Main Road, Amaravathi Nagar Post, Udumalpet Taluk. The defendant started the coaching centre in the same name with a malafide intention for the purpose to cheat the plaintiff and also innocent public by misrepresentation and impersonation and confusing the public and to cause confusion in the minds of the intending students and harm is caused and compensation is not sufficient to balance the loss sustained by the plaintiff....” According to the learned counsel for the plaintiff, the defendant is using the entire combination of words as has been used by the plaintiff. The phrase “Puthiya Polivudan Puthiya Idathil” attached to the name Vivekananda Coaching Centre only creates an impression in the minds of the public that the old centre is begun in a new place. In addition, the defendant is also claiming over 15 years of service which was gained at the plaintiff’s centre. 21. Per contra, learned counsel appearing for the appellant / defendant vehemently contended that there was no pleading regarding mis-representation as mandated in O.VI R.4 of CPC. He further submitted that the name Vivekananda is generic and is used by one and all in the country. 21. Per contra, learned counsel appearing for the appellant / defendant vehemently contended that there was no pleading regarding mis-representation as mandated in O.VI R.4 of CPC. He further submitted that the name Vivekananda is generic and is used by one and all in the country. Hence, it has lost its character and distinctiveness. Therefore, the claim of plaintiff’s exclusive right over the same is unsustainable. Whether the name Vivekananda is publici juris or generic is a question of fact that has to be decided. If the plaintiff and defendant / appellant both use a generic word or an expression, it has to be seen if the students wanting to take up coaching would be guided by the name or ignore it and give emphasis to prefix and suffix used in association therewith. Then the question would be what would strike the memory of a student or parent. As to confusion, it is, perhaps, the appropriate description of the state of mind of a customer, who, on seeing the name, thinks that it is the same institution. 22. It is pertinent to note that when the defendant has not denied the use of the name Vivekananda, there is no proof necessary by the plaintiff to establish the confusion that may be caused in the minds of the public. A person who knows nothing of either the plaintiff or defendant, may mistakenly approach any one of them for some purpose. In such a situation, there is only confusion but no misrepresentation. In assessing the likelihood of confusion, it is legitimate to take into account the nature of services rendered by the defendant. Misrepresentation, in this context, lies in the way in which the defendant leads a section of the public to think that his centre has the same quality as that of the plaintiff. But, in this case, the name, with the set of words attached to it, would certainly, without any confusion, would make the minds of the public to think that it is that of the plaintiff. In other words, the public is accustomed to the plaintiff’s Vivekananda Coaching Centre and they would be misled in going to the defendant’s coaching centre in the belief that it is the branch of the plaintiff. 23. In other words, the public is accustomed to the plaintiff’s Vivekananda Coaching Centre and they would be misled in going to the defendant’s coaching centre in the belief that it is the branch of the plaintiff. 23. Insofar as the third element regarding damage by reason of erroneous belief caused by the misrepresentation of the defendant is concerned, it is to be pointed out at this stage that in a passing off action, proof of damage is not necessary. As discussed supra, the defendant himself has admitted in his evidence that the plaintiff’s institution has been in existence for several years and gained good reputation. 24. “Qui Timet” Action is defined by Ramanatha Aiyar in his Law Lexcon as – “because he fears or apprehends. The technical name of an action instituted by a party who seeks the aid of a Court because he fears from future probable injury to his rights or interests”. 25. From a perusal of the materials available on record, it is seen that the plaintiff's Vivekananda Coaching Centre was started in 1997 and has been offering coaching to the students aspiring admission to Sainik School anywhere in India. The defendant has started the coaching Centre in the same name and in the same area in April 2011 offering similar coaching as that of the plaintiff. 26. Learned counsel representing the respondent / plaintiff placed his reliance on the decision of this Court in Aravind Laboratories vs. V.A.Samy Chemical Works reported in 1994 (1) MLJ 174 and more particularly relied on paragraph 7 of the judgment which reads as follows:- "But, in passing-off cases, the true basis of the action is that the passing-off by the defendant of his goods as the goods of the plaintiff injuries the right of property in the plaintiff, that right of property being his right to the goodwill of his business. The law assumes, or presumes, that if the goodwill of a man's business has been interfered with by the passing off of goods, damage results therefrom. He need not wait to show that damage has resulted, he can bring his action as soon as he can prove the passing off; because it is one of the class of cases in which the law presumes that the plaintiff has suffered damage. It is further submitted that in passing off cases, proof of damages is not needed. 27. He need not wait to show that damage has resulted, he can bring his action as soon as he can prove the passing off; because it is one of the class of cases in which the law presumes that the plaintiff has suffered damage. It is further submitted that in passing off cases, proof of damages is not needed. 27. In this context, it would be relevant to refer to Sections 134 and 135 of the Trade Marks Act, 1999 and the same is re-produced below:- “134. Suit for infringement, etc., to be instituted before District Court.— (1) No suit – (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered, shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit. (2) For the purpose of clauses (a) and (b) of sub-section (1), a “District Court having jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. Explanation.-- For the purposes of sub-section (2), “person” includes the registered proprietor and the registered user. 135. Relief in suits for infringement or for passing off.-- (1) The relief which a Court may graant in any suit for infringement or for passing off referred to in Section 134 includes injunction (subject to such terms, if any, as the Court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery – up of the infringing labels and marks for destruction or erasure. (2) The order of injunction under sub-section (1) may include an ex parte or any interlocutory order for any of the following matters, namely:- (a) for discovery of documents; (b) preserving of infringing goods, documents or other evidence which are related to the subject – matter of the suit; (c) restraining the defendant from disposing of or dealing with his assets in a manner which may adversely affect plaintiff's ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff. (3) Notwithstanding anything contained in sub-section (1), the Court shall not grant relief by way of damages (other than nominal damages) or on account of profits in any case-- (a) where in a suit for infringement of a trade mark, the infringement complained of its in relation to a certification trade mark or collective mark; or (b) where in a suit for infringement the defendant satisfies the Court-- (i) that at the time he commenced to use the trade mark complained of in the suit, he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on t he register or that the plaintiff was a registered user being by way of permitted use; and (ii) that when he became aware of the existence and nature of the plaintiff's right in the trade mark, he forthwith ceased to use the trade mark in relation to goods or services in respect of which it was registered; or (c) where in a suit for passing off, the defendant satisfies the Court-- (i) that at the time he commenced to use the trade mark complained of in the suit he was unaware and had no reasonable ground for believing that the trademark of the plaintiff was in use; and (ii) that when he became aware of the existence and nature of the plaintiff's trade mark he forthwith ceased to use the trade mark complained of.” 28. From a reading of the above sections, it can be understood that the plaintiff need not wait for the damages to result. He can move the court to seek injunction by proving the deceptive similarity of the name. However, the claim of the damages is optional. According to the plaintiff, when the plaintiff has not asked for substantial damages, no proof of the same is necessary. He can move the court to seek injunction by proving the deceptive similarity of the name. However, the claim of the damages is optional. According to the plaintiff, when the plaintiff has not asked for substantial damages, no proof of the same is necessary. He can restrict his relief only for grant of injunction. 29. Reliance was also placed by the learned counsel appearing for the plaintiff on Laxmikant V. Patel's case (cited supra) wherein in paragraph 13, it has been observed as follows:- “In an action for passing off it is usual, rather essential, to seek an injunction temporary or ad-interim. The principles for the grant of such injunction are the same as in the case of any other action against injury complained of. The plaintiff must prove a prima facie case, availability of balance of convenience in his favour and his suffering an irreparable injury in the absence of grant of injunction. According to Kerly (ibid, para 16.16) passing off cases are often cases of deliberate and intentional misrepresentation, but it is well-settled that fraud is not a necessary element of the right of action, and the absence of an intention to deceive is not a defence though proof of fraudulent intention may materially assist a plaintiff in establishing probability of deception. Christopher Wadlow in Law of Passing Off (1995 Edition, at p.3.06) states that the plaintiff does not have to prove actual damage in order to succeed in an action for passing off. Likelihood of damage is sufficient. The same learned author states that the defendant s state of mind is wholly irrelevant to the existence of the cause of action for passing off (ibid, paras 4.20 and 7.15). As to how the injunction granted by the Court would shape depends on the facts and circumstances of each case. Where a defendant has imitated or adopted the plaintiff’s distinctive trade mark or business name, the order may be an absolute injunction that he would not use or carry on business under that name. (Kerly, ibid, para 16.97).” 30. In the light of the foregoing discussion, I am of the considered view that the plaintiff has proved that he established his coaching centre in 1997 and gained reputation and goodwill. The defendant has started his coaching centre in the same locality in the same name and the same amounts to misrepresentation. (Kerly, ibid, para 16.97).” 30. In the light of the foregoing discussion, I am of the considered view that the plaintiff has proved that he established his coaching centre in 1997 and gained reputation and goodwill. The defendant has started his coaching centre in the same locality in the same name and the same amounts to misrepresentation. The plaintiff has made out a prima facie case and irreparable hardship in case of allowing the appellant / defendant to continue the name and balance of convenience is also found in favour of the plaintiff. I find no illegality or infirmity warranting interference of this Court with the well-considered judgment of the trial Court. In fine, the Appeal fails and the same stands dismissed confirming the judgment dated 09.07.2013 passed by the Principal District Judge, Tiruppur, in O.S. No. 33 of 2012. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.