JUDGMENT : S.J. Kathawalla, J. The present Suit is filed by the Plaintiff against the Defendants, inter alia, for an order of perpetual injunction restraining the Defendants from infringing the Plaintiff's registered trademarks bearing Nos. 436744 and/or 1521743, both in Class 32, by using in relation to beer, the trademark "Prestige 50000" Mega Strong Beer or any other trade mark deceptively similar to the Plaintiff's registered trademarks bearing Nos. 436744 and/or 1521743, both in Class 32, or in any other manner whatsoever and from manufacturing, selling, marketing, distributing, trading, exhibiting for sale or advertising beer or the like goods bearing the trademark "Prestige 50000" Mega Strong Beer or any trademark deceptively similar to the Plaintiff's trademark "Haywards 5000", so as to pass off or enable others to pass off the Defendants' beer as and for the beer of the Plaintiff and for damages, costs and other consequential reliefs. The above Notice of Motion is taken out by Defendant No. 1 seeking stay of the trial in Suit No. 3653 of 2007 u/s 124 of the Trade Marks Act, 1999 ("the Act"), till the rectification applications filed by Defendant No. 1 before the Intellectual Property Appellate Board ("IPAB"), Chennai, for cancellation of the Plaintiff's trademarks bearing Nos. 436744 and/or 1521743 both in Class 32 are finally decided. 2. The brief facts in the matter are set out hereunder. 3. On 17th January, 2007, the Plaintiff, SAB Miller India Ltd. applied for registration of the trademark "FIVE THOUSAND" in Class 32, bearing Application No. 1521743. On 22nd January, 2007, the Plaintiff filed a Notice of Opposition to Defendant No. 1's application for registration of the impugned trademark "PRESTIGE 50000" bearing No. 1342377 in Class 32, advertised in Trade Marks Journal No. 1349 dated 1st August, 2006, published on 27th September, 2006. In the said Notice of Opposition the Plaintiff relied upon its registered trademark HAYWARDS 5000 bearing Registration No. 436744 in Class 32. 4. In view thereof, on 19th December, 2007, the Plaintiff filed the present Suit against the Defendants inter alia for infringement of its registered trademark HAYWARDS 5000 bearing No. 436744 in Class 32, and for passing off. The Defendants on 6th August, 2009, filed their respective Written Statements in the present Suit merely denying the validity of the Plaintiff's registered trademark HAYWARDS 5000 bearing No. 436744 in Class 32. 5. The Defendants on 6th August, 2009, filed their respective Written Statements in the present Suit merely denying the validity of the Plaintiff's registered trademark HAYWARDS 5000 bearing No. 436744 in Class 32. 5. On 27th December, 2010, the Registrar of Trademarks registered the trademark "FIVE THOUSAND" in the name of the Plaintiff under No. 1521743 in Class 32 inter alia in respect of beer. The Plaintiff therefore took out Chamber Summons No. 185 of 2013 in the present Suit to bring on record inter alia the subsequent registration of the trademark "FIVE THOUSAND" in the name of the Plaintiff under registration No. 1521743 in Class 32 and to seek appropriate consequential reliefs. The Chamber Summons was allowed on 5th March, 2013, with liberty to the Defendant to file additional Written Statement, if any, on or before 18th March, 2013. The amended plaint was served upon the Advocate for the Defendants on 13th March, 2013. Since no additional written statement was filed by the Defendants by 18th March, 2013, this Court on 19th March, 2013, directed the Defendants to file the additional written statement, if any, on or before 25th March, 2013. However, the Defendants failed to file any additional written statements as directed by this Court. This Court therefore on 1st April, 2013, framed issues in the present Suit and directed the Plaintiff and the Defendants to file their respective affidavit of evidence and compilation of documents on or before 2nd May, 2013. 6. On 2nd May, 2013, the Plaintiff filed its affidavit of evidence and compilation of documents. The Defendants failed to comply with the order dated 1st April, 2013. 7. On 20th June, 2013, Defendant No. 1 purportedly filed an application for rectification of the Plaintiff's registered trademarks bearing Registration Nos. 436744 and/or 1521743, both in Class 32, before the IPAB. On 24th June, 2013, this Court marked as exhibits the Plaintiff's documents filed in the above Suit. On the same day, the Defendants served a copy of the rectification application on the Plaintiff. Thereafter on 23rd April, 2013, the Defendants registered the present Notice of Motion bearing No. 1042 of 2013 before this Court seeking stay of the present Suit pending the final disposal of the aforesaid rectification applications. On 6th August, 2013, the Plaintiff filed its affidavit-in-reply to the aforesaid Notice of Motion to which the Defendants filed its affidavit-in-rejoinder on 30th August, 2013. On 6th August, 2013, the Plaintiff filed its affidavit-in-reply to the aforesaid Notice of Motion to which the Defendants filed its affidavit-in-rejoinder on 30th August, 2013. The Notice of Motion was taken up for final hearing. 8. In support of the above Notice of Motion, Mr. Khera, the Learned Advocate appearing for Defendant No. 1, has submitted that: (i) Defendant No. 1 has filed the rectification applications against the Plaintiff's trademarks bearing registration Nos. 436744 and 1521743, both in Class 32 u/s 47 and/or 57 and/or 125 of the Act before the IPAB which are pending; (ii) that the said rectification applications are prima facie tenable and based on strong principles of law; and (iii) that as per the circumstances provided u/s 124 of the Act, the above Suit be stayed pending the final disposal of the aforesaid applications. 9. In support of his submissions, Mr. Khera has relied on the decisions in: (i) Safari Cycles Pvt. Ltd. Vs. R.D. Sharma, (2003) 27 PTC 72; (ii) M/s. Shakti Traders vs. M/s. Shakti Press Ltd. 2008 (5) All M.R. 699, (iii) 2011 (47) PTC 231 ; (iv) Micolube India Ltd. Vs. Maggon Auto Centre and Another, (2008) 150 DLT 458 ; (v) The Singer Company Limited and Another Vs. Chetan Machine Tools and Others, (2009) 159 DLT 135 , (vi) Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, (1998) 8 SCC 1 ; and (vii) Golden Rubber Industries vs. Tirumala Polymers MIPR 2008 (1) 361, and submitted that Defendant No. 1 is entitled to seek a stay of the present Suit in view of the pending rectification applications filed by the Defendants before the IPAB. 10. Mr. Kane, the Learned Advocate appearing for the Plaintiff has taken me through Section 124 of the Act and has submitted that on the date of institution of the above Suit, no proceedings for rectification of the Plaintiff's registered trademarks bearing Nos. 436744 and 1521743, both in Class 32 were filed and pending before the Registrar or before the IPAB, and in the circumstances the provisions of Section 124(1)(b)(i) of the Act are not applicable to the present case. It is submitted that pending the disposal of the rectification proceedings, the Suit can be stayed only if the Defendant makes out a case u/s 124(1)(b)(ii) of the Act. It is submitted that pending the disposal of the rectification proceedings, the Suit can be stayed only if the Defendant makes out a case u/s 124(1)(b)(ii) of the Act. It is submitted that unless all the pre-requisites for stay of the Suit u/s 124(1)(b)(ii) are fulfilled, the Suit should not be stayed. Mr. Kane has further submitted that the Defendant, in order to succeed in its application for stay of the Suit, must satisfy the Court that its plea regarding the invalidity of registration of the Plaintiff's registered trademarks is prima facie tenable. It is submitted that the Defendant has failed and neglected to place on record any material stating details of and supporting its claim of invalidity of registration of the Plaintiff's registered trademarks. The Defendant has also not filed in this Court a true copy of the rectification application. It is submitted that in view thereof, the Suit cannot be stayed. In support of the above submissions, Mr. Kane, the Learned Advocate appearing for the Plaintiff has relied on the decisions in (i) Astrazeneca UK Limited and Another Vs. Orchid Chemicals and Pharmaceuticals Ltd., (2007) 34 PTC 469 ; (ii) Pfizer Products Inc. Vs. Rajesh Chopra and Others, (2007) 35 PTC 59; (iii) The Financial Times Ltd. Vs. Bennett Coleman and Co. Ltd., (2011) 176 DLT 368 11. Mr. Kane has taken me through the facts set out in the abovementioned judgments and has submitted that the Defendant No. 1 cannot at this belated stage, file an application for rectification of the Plaintiff's registered trademarks and seek stay of the Suit. There is a delay of six and a half years on the part of Defendant No. 1 to file the said application for rectification and consequently/thereby seek stay of the Suit. It is submitted that Defendant No. 1 has not given any reason and/or explanation for the delay in filing the said rectification application and for approaching this Court at such a belated stage seeking stay of the present Suit. In support of his submission, Mr. Kane has relied on the observations of the Hon'ble Delhi High Court in the case of Financial Times Ltd. (supra). It is therefore established that Defendant No. 1 has filed the rectification application only with a view to delay the trial in the present Suit. In support of his submission, Mr. Kane has relied on the observations of the Hon'ble Delhi High Court in the case of Financial Times Ltd. (supra). It is therefore established that Defendant No. 1 has filed the rectification application only with a view to delay the trial in the present Suit. The act of filing the present application by Defendant No. 1 amounts to abuse of the process of law. Mr. Kane submitted that if the Suit is stayed at this stage, great loss, inconvenience and hardship will be caused to the Plaintiff. It is therefore submitted that the Suit should not be stayed. 12. In so far as the Plaintiff's trademark "FIVE THOUSAND" bearing Registration No. 1521743 in Class 32 is concerned, Mr. Kane has pointed out that despite the Defendants being granted opportunities to file their additional Written Statement, they have failed to do so. In view thereof, this Court proceeded and framed issues in the Suit and eventually proceeded to the stage of cross-examination of the Plaintiff's witness. Defendant No. 1 has therefore, despite getting an opportunity to file an additional written statement and plead invalidity of the registration of the Plaintiff's said registered trademark No. 1521743 in Class 32, chosen not to do so. It is submitted that therefore so far as the Plaintiff's registered trademark No. 1521743 in Class 32 is concerned, there is no pleading on behalf of Defendant No. 1 that the registration of the Plaintiff's trade mark bearing No. 1521743 in Class 32 is invalid. It is submitted that in the absence of the said pleading of invalidity of the Plaintiff's registered trademark No. 1521743 in Class 32 by the Defendant, the validity of the Plaintiff's said registered trademark is not in issue in the above Suit. 13. Mr. Kane therefore submitted on behalf of the Plaintiff that this is an additional ground on which the Suit should not be stayed. Mr. Kane has submitted that even otherwise there is gross delay on the part of the Defendants in filing the rectification proceedings and the present Notice of Motion therefore deserves to be dismissed with costs. Mr. Kane has also submitted that the decisions relied on by Mr. Khera on behalf of the Defendants lend no assistance to the Defendants and are therefore irrelevant. 14. Mr. Kane has also submitted that the decisions relied on by Mr. Khera on behalf of the Defendants lend no assistance to the Defendants and are therefore irrelevant. 14. I have considered the submissions advanced by the Learned Advocates appearing for the parties and the case laws relied upon by them. Section 124 of the Act is reproduced hereunder: 124. Stay of proceedings where the validity of registration of the trademark is in question, etc.- (1) Where in any suit for infringement of a trade mark- (a) the defendant pleads that registration of the plaintiff's trade mark is invalid; or (b) the defendant raises a defence under clause (e) of sub-section (2) of section 30 and the plaintiff pleads the invalidity of registration of the defendant's trade mark, the court trying the suit (hereinafter referred to as the court), shall,- (i) if any proceedings for rectification of the register in relation to the plaintiff's or defendant's trade mark are pending before the Registrar or the Appellate Board, stay the suit pending the final disposal of such proceedings; (ii) if no such proceedings are pending and the court is satisfied that the plea regarding the invalidity of the registration of the plaintiff's or defendant's trade mark is prima facie tenable, raise an issue regarding the same and adjourn the case for a period of three months from the date of the framing of the issue in order to enable the party concerned to apply to the Appellate Board for rectification of the register. (2) If the party concerned proves to the court that he has made any such application as is referred to in clause (b) (ii) of sub-section (1) within the time specified therein or within such extended time as the court may for sufficient cause allow, the trial of the suit shall stand stayed until the final disposal of the rectification proceedings. (3) If no such application as aforesaid has been made within the time so specified or within such extended time as the court may allow, the issue as to the validity of the registration of the trade mark concerned shall be deemed to have been abandoned and the court shall proceed with the suit in regard to the other issues in the case. (4) The final order made in any rectification proceedings referred to in sub-section (1) or sub-section (2) shall be binding upon the parties and the court shall dispose of the suit conformably to such order in so far as it relates to the issue as to the validity of the registration of the trade mark. (5) The stay of a suit for the infringement of a trade mark under this section shall not preclude the court from making any interlocutory order (including any order granting an injunction, directing account to be kept, appointing a receiver or attaching any property), during the period of the stay of the suit. 15. Admittedly, no proceedings for rectification of the Plaintiff's registered trademarks bearing Nos. 436744 and 1521743 were filed and pending before the Registrar or before the Appellate Board on the date of the institution of the above Suit and in the circumstances, the provisions of Section 124(1)(b)(i) of the Act are not attracted in the present case. The essential prerequisites for stay of the Suit u/s 124(1)(b)(ii) of the Act are: (a) the Court should be satisfied that the plea raised by the Defendant regarding the invalidity of the registration of the Plaintiff's registered trademarks bearing Nos. 436744 and/or 1521743 is prima facie tenable; (b) the Court should thereafter raise an issue regarding the invalidity of the registration of the Plaintiff's said trademarks; (c) the Court should then give time to the Defendant to apply to the Appellate Board for rectification of the register; and (d) the Defendant proves to the Court that he has made an application for rectification of the Plaintiff's registered trademarks in the Register as contemplated in Section 124(2) of the Act. 16. In the case of Astrazeneca UK Ltd. & Anr. vs. ORCHID Chemicals and Pharmaceuticals Ltd. (supra), the Hon'ble Division Bench of the Delhi High Court, inter alia, held that the mere fact of filing an application for invalidating the trademark of the Respondent/Defendant would not automatically and ipso facto translate into a stay of the registration or result in putting of any fetters on the rights of the registered owner of the trademark, flowing from the registration of the mark. Paragraphs 12 and 13 of the said decision are relevant and reproduced hereunder: 12. There is also a dispute with regard to the registration of trade mark of the plaintiffs/appellants under the trade name 'Meronem'. Paragraphs 12 and 13 of the said decision are relevant and reproduced hereunder: 12. There is also a dispute with regard to the registration of trade mark of the plaintiffs/appellants under the trade name 'Meronem'. An application for rectification was also filed by the appellant-plaintiff No. 1 for removal and rectification of trade mark of the respondent/defendant before the Trade Mark Registry which was later on withdrawn by the appellants/plaintiffs and thereafter an application was filed before the Appellate Board for Intellectual Property for rectification, which is still pending. It is however clear and apparent that the rectification application for registration of the trade mark of the respondent/defendant was filed by the appellant/plaintiff No. 1 after the institution of the present suit. The mere fact of filing of an application for invalidating the trade mark of the respondent/defendant would not automatically and ipso facto translate into a stay of the registration or result in putting of any fetters on the rights of the registered owner of the trade mark, flowing from the registration of the mark. 13. It was however submitted on behalf of the appellants/plaintiffs that in view of provisions of Section 124 of the Act there should have been a stay of the proceedings when the validity of the registration of trade mark is in question. However, in the present case, the provisions of Section 124(1)(b)(ii) would not be applicable. The said provisions are applicable only to an application for rectification which is already pending, in view of which, the suit could be stayed, pending final disposal of such proceeding. The provisions which would be applicable to the facts and circumstances of the present case are those which envisage that where the application for rectification of the order in such proceeding is not pending, then a party seeking rectification applies for rectification, subject to a prima facie satisfaction of the Court regarding invalidity of the registration of the mark of the opposite party. The appellants/plaintiffs therefore could not have filed an application for rectification without showing, establishing and obtaining prima facie satisfaction of the Court that they have sufficient material to be able to invalidate the registration of the mark of the respondent/defendant. The aforesaid rectification proceeding which is filed is still pending for consideration. Therefore, the learned Single judge was justified in not staying the Suit. The aforesaid rectification proceeding which is filed is still pending for consideration. Therefore, the learned Single judge was justified in not staying the Suit. The said decision is also followed by the Delhi High Court in its subsequent decision in Pfizer Products Inc. vs. Rajesh Chopra and others (supra). 17. In the case of Financial Times Ltd. vs. Bennet Coleman & Co. Ltd. (supra), the Hon'ble Delhi High Court in paragraph 6 held as follows: 6....The defendant undoubtedly has a right to contest the inherent non-distinctiveness of a trademark either by filing an application for rectification u/s 57 on the applicable grounds or approach the Court, if necessary. Those statutory rights cannot be interfered with by the Court. All that the Court is required to do in a situation where a rectification proceeding is pending, a situation visualized by Section 124(1)(b)(ii) as on the date of the suit, is to stay it in the event it is satisfied that the invalidity of the Plaintiff's trademark is a prima facie tenable plea taken by the defendant. 18. In the present case, Defendant No. 1 has not placed on record any material or document to prove that its plea of invalidity of the Plaintiff's registered trademarks "HAYWARDS 5000" or "FIVE THOUSAND" under Nos. 436744 in Class 32 and 1521743 in Class 32 respectively is prima facie tenable. Also Defendant No. 1 did not move this Court in respect of its prima facie finding qua the validity of the Plaintiff's registered trademark. Defendant No. 1 has filed the rectification application surpassing the provisions laid down in Section 124 of the Act. Despite the Defendants being given several opportunities to file an additional written statement after allowing the Plaintiff to bring the facts pertaining to the registration of the trade mark FIVE THOUSAND bearing No. 1521743 in Class 32, inter alia, in respect of beer, the Defendants failed and neglected to file its additional written statement because of which the Court was constrained to frame the issue and fix the matter for cross-examination of the Plaintiff's witness. In the circumstances, in so far as the Plaintiff's registered trademark No. 1521743 in Class 32 is concerned, there is not even a pleading on behalf of the Defendants that the registration of the Plaintiff's trademark bearing No. 1521743 in Class 32 is invalid. 19. The Defendant is also guilty of gross delay in approaching this Court. In the circumstances, in so far as the Plaintiff's registered trademark No. 1521743 in Class 32 is concerned, there is not even a pleading on behalf of the Defendants that the registration of the Plaintiff's trademark bearing No. 1521743 in Class 32 is invalid. 19. The Defendant is also guilty of gross delay in approaching this Court. The Plaintiff filed the present Suit on 19th December, 2007. The Defendants denied the validity of the Plaintiff's registered trade mark HAYWARDS 5000 bearing Registration No. 436744 in Class 32 in its Written Statement filed on 6th August, 2009. The Defendants ought to have immediately made an application before this Court for seeking leave to file the rectification application to the Plaintiff's said registered trademark and after obtaining such leave ought to have proceeded to file the rectification application against the Plaintiff's registered trademark before the IPAB and thereafter sought stay of the Suit. Admittedly, Defendant No. 1 failed to do so. The Defendant No. 1 has filed the application for rectification only on 20th June, 2013. Having been aware of the Plaintiff's said registered trademark since January, 2007 and in any event since December, 2007 and having denied the validity of the Plaintiff's said registered trademark in August, 2009, the Defendant No. 1 ought to have immediately filed the present application instead of approaching this Court after almost six and a half years and that too without giving any reason and/or explanation for the delay in filing the said rectification application. In the circumstances, though the above Notice of Motion deserves to be dismissed on the grounds set out hereinabove, I am not inclined to dismiss the above Notice of Motion, being conscious of the fact that the dismissal of the Notice of Motion will be followed by the hearing of the present Suit which will deprive the Defendants an opportunity to test its case by way of rectification proceedings qua its contention as regards the invalidity of the Plaintiff's trademarks, and thereby cause grave prejudice to the Defendants and also being further conscious of the fact that it is the Advocate for the Defendants who ought to have guided the Defendants qua the correct steps and proceedings required to be taken in the matter and the concerned Advocate not having done so, the clients should not suffer. I am also doing so since there is already in favour of the Plaintiff ad-interim/interim reliefs granted, and the stay of Suit shall not cause harm and/or prejudice to the Plaintiff, whereas proceeding with the Suit, will as stated hereinabove cause grave harm, injury and prejudice to the Defendants. Therefore, the Notice of Motion is allowed in terms of prayer clause (a), only keeping in view of the fact that the same will otherwise cause grave harm and prejudice to the Defendants. The Notice of Motion is accordingly disposed of.