ORDER : M. Sundar, J. This is an application seeking amendment of plaint. Applicant herein is the plaintiff in the main suit. Defendants 1 and 2 in the main suit are respondents 1 and 2 respectively in this application. The parties in this amendment application are referred to by their respective ranks in the main suit for the sake of convenience and clarity. In other words, the applicant in this application is referred to as plaintiff and respondents 1 and 2 in this application are referred to as defendants 1 and 2. Both the respondents in this application are collectively referred to as defendants. All for the sake of convenience and clarity. 2. Plaintiff is a Chennai based company engaged in the business of manufacturing, marketing and exporting household kitchen appliances, such as Mixer Griender, Wet Griender, Iron boxes, Electric Cookers, Microwave Ovens etc., Plaintiff claims that it has launched a new range of Mixer Grinder hearing a mark 'Preethi Blue Leaf' in the year 2005. This mark 'Preethi Blue Leaf' applied on the product Mixer Grinder is the subject matter of the suit. Therefore, the mark 'Preethi Blue Leaf' that is sought to be applied on the mixer grinder is referred to as 'said mark' for the sake of convenience. Plaintiff chooses to refer to the said mark as 'trade dress'. Therefore, the terms said 'mark' and 'trade dress' are used synonymously and alternatively in this order. 3. Plaintiff has applied for registration of trade mark with regard to the said mark. 4. Besides applying for registration of trade mark, the plaintiff claiming novelty in the leaf motif shape pertaining to the said mark/trade dress had also applied for registration of design. Design registration was granted on 6.1.2005 by the appropriate authority in Calcutta. 5. Therefore, the plaintiff with regard to the said mark/trade dress had applied for registration of trade mark application was pending and design registration application had been acceded to and design was registered. 6. When things stood as above, plaintiff stating that it came across defendant's Mixer Grinder products with similar mark/trade dress, filed the instant suit on 24.9.2008 in this Court complaining of infringement of its registration design and passing off of the said mark/trade dress. 7. The first defendant entered appearance and the contest began. 6. When things stood as above, plaintiff stating that it came across defendant's Mixer Grinder products with similar mark/trade dress, filed the instant suit on 24.9.2008 in this Court complaining of infringement of its registration design and passing off of the said mark/trade dress. 7. The first defendant entered appearance and the contest began. First defendant sought rejection of plaint under the provisions of Order 7, Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for brevity) primarily on the ground that both the defendants reside out side the jurisdiction of this Court and the plaintiff had not obtained leave under Clause 12 of the Letters Patent which is a mandatory requirement. Rejection of plaint application was dismissed and first defendant carried it by way of an Intra Court Appeal to a Division Bench of this Court vide O.S.A. No. 40 of 2009. One of the main issues in the Intra Court Appeal was whether this is a Copy right suit and whether the plaintiff would have the benefit of Section 62 of the Copy Right Act, qua jurisdiction. However, in the light of the plaint averments that the alleged infringement had taken place within the territorial jurisdiction of this Court OSA was dismissed. This dismissal of OSA. No. 40 of 2009 on 25.09.2013 is a reported judgment, reported in 2013-5-L.W. 440 : 2013 (6) CTC 247 . 8. In the interregnum, pending the above said Intra Court Appeal, the instant application for amendment of plaint was taken out by the plaintiff on 23.02.2011. 9. The sole basis on which the amendment application has been filed is that the application for registration of trade mark of the said mark of the plaintiff which was pending at the time of institution of suit has since fructified into a registration and therefore, the plaintiff wants to amend the prayer so as to claim relief against alleged infringement of said mark and also add certain averments in the body of the plaint relatable to this prayer. In other words, the plaintiff wants to convert the passing off prayer into one of infringement of said mark prayer. In other words, the plaintiff wants to convert the passing off prayer into one of infringement of said mark prayer. It is axiomatic that the plaintiff vide the instant amendment application wants to convert this suit from one seeking common law remedy into a statutory suit under the Trade Mark Act, 1999 qua said mark as far as Trade Mark reliefs are concerned. 10. Having set out the sole and main basis for the amendment and also the nature of the amendment that has been sought for it may not serve any purpose to extract every single of amendment to the body and prayer paragraph of the plaint that has been sought. 11. The first defendant has filed a counter affidavit. The first defendant opposes this amendment application very seriously. 12. There are three main grounds on which the amendment application is opposed by the first defendant. The three main grounds are as follows: (i) Plaintiff is attempting to confer the jurisdiction on this Court which is otherwise not available to this Court. (ii) It wideness the scope of the suit. (iii) The amendment sought under Order 6, Rule 17 are not relatable to the pleadings. (iv) Registration of Trade Mark pending suit cannot be a ground for amending the plaint when admittedly the Trade Mark Registration Application was only pending on the date of institution of the suit. 13. I have perused the rival pleadings and also heard Mr. Arunkarthik Mohan for the plaintiff and Mr. V.P. Raman, for the first defendant. 14. In my opinion, the following five dates, are soul of the matter. Those dates are as follows: Event Date (i) Plaintiff's application for registration of Trade Mark being Appl. No. 1544728 dated 29.03.2008 (ii) Instant Plaint dated 23.09.2008 (iii) Presentation of instant plaint dated 24.09.2008 (iv) Registration of Trade Mark granting Trade Mark Registration (Trade Mark No. 1544728 and Registration No.762051) 27.10.2008 (v) Instant amendment application filed on 23.02.2011 The above Registration is under Clause 7 of the relevant annexure under the Trade Mark Act. 15. No. 1544728 dated 29.03.2008 (ii) Instant Plaint dated 23.09.2008 (iii) Presentation of instant plaint dated 24.09.2008 (iv) Registration of Trade Mark granting Trade Mark Registration (Trade Mark No. 1544728 and Registration No.762051) 27.10.2008 (v) Instant amendment application filed on 23.02.2011 The above Registration is under Clause 7 of the relevant annexure under the Trade Mark Act. 15. The above dates would show that the only issue that is to be examined for deciding the amendment application is whether the plaintiff, which did not have the trade mark registration on the date of presentation of the plaint and had only applied for registration of Trade Mark which was pending, can claim the benefit of Registration of Trade Mark when it is granted pending suit by relying on Section 23 of the Trade Mark Act as Trade Mark Registration when granted shall stand registered as on the date of the application and such date should be deemed to be the date of registration. 16. In search of answer to the above issue/question, both the learned counsel were heard elaborately at the Bar. 17. To the main apprehension of the first defendant that the plaintiff is making an attempt to confer jurisdiction on this Court which is otherwise not available, learned counsel for the plaintiff very fairly submitted that even if this amendment application is allowed, they will not take recourse to Section 134 (2) of the Trade Marks Act, 1999 (47 of 1999) (hereinafter referred as 'TM Act' for the sake of brevity) and claim jurisdiction based on the plaintiff carrying on business within the territorial jurisdiction of this Court. Learned counsel for the plaintiff fairly submitted that they are willing to file an affidavit of the plaintiff in this regard. Therefore, this court records the submission. In this view of the matter the apprehension of the defendant relating to territorial jurisdiction is nullified. 18. The position of the first defendant that the amendment sought to be made is not relatable to pleadings may not have much force as the plaintiff has fairly pleaded in the plaint that it has made an application for registration of Trade Mark with regard to the said mark and that the same is pending. 18. The position of the first defendant that the amendment sought to be made is not relatable to pleadings may not have much force as the plaintiff has fairly pleaded in the plaint that it has made an application for registration of Trade Mark with regard to the said mark and that the same is pending. In fact, the plaintiff has gone so far to plead in the plaint that with regard to the Trade Mark Registration of the trade mark and trade dress all the legal requirements pertaining to registration of the trade mark have been complied with and that the same in the penultimate stage. Paragraph 7 of the plaint may usefully be extracted and the same reads as follows: "7. It is respectfully submitted the plaintiff has followed the necessary legal procedure for registration of the mark, trade dress and design right. The registration of the trade mark and trade dress of 'Preethi Blue Leaf' series is recognised by the Registrar of Trade marks. All the legal requirements pertaining to registration of the trade mark has been complied with and the trademark application (Application No. 1544728 filed on 29/03/2008) has been published in Journal Number 1393 (Document No.2). The registration process has reached the penultimate stage of granting the registration certificate." 19. With regard to widening the scope of the plaint, admittedly if the prayer for amendment in the instant application is acceded to, a suit which was originally one for passing off under common law (remedy) would now became a statutory suit for infringement. Though obvious, it is made clear that this aspect is with regard to Trade Mark only and not with regard to Designs Act. 20. With regard to Trade Mark, law is well settled that the essential distinction between a common law action for passing off and an action for infringement by way of statutory suit under the T.M. Act is that in a statutory suit it will suffice if the plaintiff proves that the marks are similar and are capable of deception, whereas, in a common law action, the plaintiff has to prove actual material loss and deception. 21. On the above aspect learned counsel for plaintiff would contend that he is entitled to benefit of a statutory suit as the Trade Mark Registration has now been granted. 22. 21. On the above aspect learned counsel for plaintiff would contend that he is entitled to benefit of a statutory suit as the Trade Mark Registration has now been granted. 22. Therefore, the question in this application narrows down to deciding whether a suit for passing off being a common law remedy can subsequently be converted into a statutory suit for infringement, on the basis of Section 23 of Trade Mark Act. 23. In search of an answer to the above question, one has to necessarily examine the doctrine of relation back with regard to Trade Mark Registration. Before 1 examine the doctrine of relation back, the authority/case laws cited at the Bar by both counsel may be usefully enlisted. 24. The plaintiff relied on the following case laws: (i) P.L. Anwar Basha v. M.Natarajan reported in AIR 1980 Mad 56 . 25. The first defendant relied on the following 8 case laws: (i) Premier Distilleries P. Ltd. v. Sushi Distilleries reported in 2001-3-L.W. 585 : 2001(3) CTC 652 (ii) Dhodha House v. S.K.Maingi reported in 2006-3-L.W. 96 : 2006(9) SCC 41 (iii) Archie Comic Publications, Inc. v. Purple Creations P. Ltd. reported in 2008 (37) PTC 279 (Del.) (iv) Presteege property developers v. Prestige estates projects pvt. ltd, reported in MIPR 2009(3)231) (v) Archie Comic Publications Inc. v. Purple Creations P. Ltd. reported in (2010 172 DLT 234 DB) (vi) Thalapakatti Naidu Ananda Vilas Biriyani Hotel v. Thalapakattu Biriyani and Fast Food reported in 2011 (4) CTC 541 (vii) Thalappakattu Biriyani and Fast Food v. M/s. Thalappakatti Naidu Ananda Vilas Biriyani Hotel reported in 2011 (4) L.W.193 (viii) Urooj Ahmed, Lords Enterprises(India) v. Preethi Kitchen Appliances P. Ltd., reported in 2013-5-L.W. 440 : 2013 (6) CTC 247 . 26. On an examination of the citations/authorities relied on by the plaintiff, it is seen that it pertains to Beedi wrappers and the Mark is 'fish beedies'. That is also a case where, Trade Mark Registration was granted pending suit. Learned Single Judge of this Court accepted the position with regard to Section 23 of T.M. Act and relying on Kerly's Law of Trade Marks and Trade Names, and held that an infringement suit is maintainable. That is also a case where, Trade Mark Registration was granted pending suit. Learned Single Judge of this Court accepted the position with regard to Section 23 of T.M. Act and relying on Kerly's Law of Trade Marks and Trade Names, and held that an infringement suit is maintainable. That part of Kerly's law of the Trade Mark Act and Trade Names that has been relied on by the learned Single Judge reads as follows: "Kerly in his book 'Law of Trade Marks and Trade Names' 10th Edition, Ch. 15, paragraph 15 at page 309 says:- ? The writ for infringement may be issued before registration of the mark, provided that registration has been applied for, since the registration is dated back to the application." 27. When the above judgment was passed, the old Trade and Merchandise Marks Act, 1958 was operating. However, there is no change with regard to Section 23 in the New TM Act, 1999, but notwithstanding, this is being referred to only to say that Trade Mark law has travelled a very long distance and has developed vastly in the last 36 years ever since the judgment was rendered. 28. There is also subsequent Division Bench Judgment of this Court in ( 2001(3) CTC 652 ) Premier Distilleries case, which I would refer to in the paragraphs to follow. 29. Be that as it may, Kerly's Law of Trade Marks and Trade Names fourteenth edition at P. 395 reads as follows: "Date from which rights are conferred The right of the proprietor have effect from the date of filing of the application for registration. But, no infringement proceedings may be begun before the date on which the trade mark is in fact registered. In this respect the position is the same as under the old law." 30. This is to be understood in the context of Section 9 of U.K. Trade Marks Act, 1994. But, no infringement proceedings may be begun before the date on which the trade mark is in fact registered. In this respect the position is the same as under the old law." 30. This is to be understood in the context of Section 9 of U.K. Trade Marks Act, 1994. Section 9 of U.K. Trade Marks Act, 1994, reads as follows: Absolute grounds for refusal of registration - (1) The Trade marks-(a) which are devoid of any distinctive character, that is to day, not capable of distinguishing the goods or services of one person from those of another person; (b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service; (c) which consist exclusively of marks or indications which have become customary in the current language or in the bona-fide and established practices of the trade, shall not be, registered; Provided that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark. (2)A mark shall not be registered as a trade mark if - (a) it is of such nature as to deceive the public or cause confusion. (b) it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India; (c) It comprises or contains scandalous or obscene matter; (d) its use is prohibited under the Embelms and Names (Prevention of Improper Use) Act, 1950 (12 of 1950) (3) A mark shall not be registered as a trade mark if it consists exclusively of - (a) the shape of goods which results from the nature of the goods themselves; or (b) the shape of goods which is necessary to obtain a technical result; or (c) the share which gives substantial value to the goods. Explanation- For the purpose of this section, the nature of goods services in relation to which the trade mark is used or proposed to be shall not be a ground for refusal of registration." 31. Explanation- For the purpose of this section, the nature of goods services in relation to which the trade mark is used or proposed to be shall not be a ground for refusal of registration." 31. Now coming back to our own Premier Distilleries case reported in 2001 (3) CTC 652 , a Division Bench of this Court held that cause should precede the act and the act cannot precede the cause. 32. Paragraphs 10 and 11 of the above said Division Bench judgment may be usefully extracted and the same reads as under: 10. The argument advanced that registration it granted would date back to the date of application and that the plaintiff would have the right to seek amendment of the plaint to seek relief on the ground of infringement as well, is wholly irrelevant so far as the cause of action for bringing a suit for passing off is concerned. While it may be convenient to the plaintiff to institute a suit in a court where he may later on be able to bring a suit for infringement of the trade mark, that convenience of the plaintiff is in no way relevant for deciding as to whether a cause of action for filing a suit for passing off can be said to have arisen in a place where, the deceit alleged to have been practised by the defendant had in fact, not been practised within the jurisdiction of the court in which the suit is brought. 11. The cause of action is not to be confused with convenience. Many things may be convenient to a plaintiff, but they do not become part of bundle of facts requiring to be established for obtaining the decree in the suit. The argument advanced for the plaintiff is also far fetched. It seeks to presume that the plaintiff in a suit for passing of who has applied for registration of the mark will pursue the effort to have the trade mark registered; that such effort will be successful; that such an event will occur when the suit is still pending; that the suit will continue to pend till the registration is effected; that plaintiff would be seeking an amendment to add a prayer with regard to infringement and that the plaintiff would be ultimately in a position to establish infringement. The cause of action is something which has occurred and which gives a right to take action. The cause must precede the action and not follow it. The events contemplated by the plaintiff as being capable of occurring at a point of time in the future, merely on account of those possibilities, will not constitute a cause of action for relief for securing which, those events are not materially relevant. 33. Premier Distilleries was followed by Karnataka High Court in the Presteege Property Developers case reported in 2010 (42) PTC 480 (Kam). Premier Distilleries case, on facts is very similar to the instant amendment application. In Presteege Property Developers case the relevant question which the Court addressed itself to is found in paragraph 12 of the said judgment and the same reads as follows : "12...... (iii) Whether the subsequent registration of the trade mark for the same Class to which the dispute relates, during the pendency of the suit though would dale back, be relatable to the cause of action and conferment of jurisdiction?.... 34. Following the Premier Distilleries, case the Karnataka High Court held as follows: "However, what is to be considered is the subsequent decision by the Hon'ble Division Bench of the High Court of Madras in the case of Premier Distelleries Pvt. Ltd. v. Sushi Distilleries 2001 PTC MAD(DB) 907 relied on by the learned Counsel for the appellant, wherein the aspect of jurisdiction in relation to cause of action was examined exhaustively. Paragraphs 10 and 11 read as hereunder: Relevant portion/paragraphs of Premier Distilleries have already been extracted supra in this order and therefore, the same is not repeated here. 35. Therefore, in the light of the ratio on the principle of doctrine of relation back pertaining to Trade Mark Registration and Section 23 of Trade Marks Act, there is no doubt in my mind that a common law suit for passing off cannot be converted into a statutory suit for infringement. 35. Therefore, in the light of the ratio on the principle of doctrine of relation back pertaining to Trade Mark Registration and Section 23 of Trade Marks Act, there is no doubt in my mind that a common law suit for passing off cannot be converted into a statutory suit for infringement. Further, after extracting paragraphs 10 and 11 in Premier Distilleries case, the Karnataka High Court has held in paragraphs 18 as follows: "One more way of looking at the said aspect also would be that even though in the instant case the trade mark application which was filed earlier has been accepted and the registration is granted subsequently and if by noticing Section 23 of the Act, the maintainability of the suit on such relation back is accorded, the same would also lead to an anomalous situation in the context of cause of action and jurisdiction. For example in the case relating to MFA No.4954/2006, the injunction was granted on 20.04.2006 while the registration in Class 37 which is the relevant class was granted on 16.10.2006. In the case in MFA.No. 13896/06, the injunction was granted on 15.12.2006 while the registration in the relevant Class - 42 was granted on 22.08.2008. Hence, in both the cases, the injunction was earlier to grant of registration and merely because the application was on 22.05.2005 and 16.02.2006 respectively, if relation back is accorded, it would be as if ratifying an injunction which could not have been granted on the date on which it was done for want of jurisdiction in a suit for passing off and for want of cause of action and jurisdiction in the case of infringement. Hence, if the contention of the respondents herein is accepted, in that context also, it would be contrary to the view expressed in Premier Distilleries and Dhodha House.? 36. With regard to other judgments relied on by the first defendant namely, Dhadha House, Urood Ahmed, Archie Comic Publications (Single Judge and DB) and Thallapakatti Birayani (Single Judge and DB) they were relied merely for the jurisdictional aspect Therefore, I am not inclined to go into the same for the purpose of this order. 37. In conclusion, I held that with regard to Trade Marks, a common law suit for passing off cannot be converted into a statutory suit for infringement when Trade Mark Registration is granted pending suit. 37. In conclusion, I held that with regard to Trade Marks, a common law suit for passing off cannot be converted into a statutory suit for infringement when Trade Mark Registration is granted pending suit. On this finding I hold that the application for amendment deserves to be dismissed. 38. It is noticed that the suit is of the year 2008. More than eight years have rolled by but the pleadings have not been completed. The first defendant has not filed its written statement. Matter has been prolonged in interlocutory applications alone. Therefore, as I propose to dismiss the amendment application, I hold that the first defendant has to complete the pleadings by filing his written statement at the earliest and the suit should be set down for trial after framing of issues and completing other pre-trial formalities. This brooks no delay. 39. I direct the first defendant to file its written statement with suitable application for condonation of delay and complete the pleadings within a fortnight from the date of this order, issues should be framed within fortnight thereafter and the suit should be set down for a time bound for trail i.e., within a fortnight there from. 40. I also utilize this order to set the second defendant ex-parte suitable order being passed in the suit. 41. The instant amendment application is dismissed. In the facts and circumstances of the case, the parties are left to bear their respective costs. 42. Appl. No. 1268 of 2011 in C.S. No. 949 of 2008 With regard to paragraphs 38 and 39 when the order was pronounced in the open court on 16.12.2016, it was brought to the notice of the Court that the first defendant has filed written statement with an application for condonation of delay namely Appl. No. 546 of 2011 and that the same has been ordered on 31.01.2011. Therefore, the calender set out in paragraphs 38 and 39 has been modified in the following manner: (i) Now, that the pleadings are complete, the parties shall exchange draft issues amongst themselves, bring up the matter for framing issues before the Court and get issues framed by Court within a fortnight from today. (ii) All other pre-trial formalities such as list of witnesses, discovery of documents etc., shall be completed within a fortnight thereafter. (ii) All other pre-trial formalities such as list of witnesses, discovery of documents etc., shall be completed within a fortnight thereafter. (iii) Thereafter, i.e., four weeks from now the main suit shall be set down for trial. 43. This post script shall form part of the order dated 16.12.2016. This post script shall be read as an intergral part and parcel of the order.