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2020 DIGILAW 231 (JHR)

Piyush Adesara v. Santosh Kumar Verma

2020-02-05

DEEPAK ROSHAN, H.C.MISHRA

body2020
JUDGMENT H.C. Mishra, J. - Heard learned counsel for the plaintiffs appellants and learned senior counsel for the defendant respondent. 2. The appellants are aggrieved by the impugned order dated 17.4.2017, passed by the learned Presiding Officer, Commercial Court, Jamshedpur, in Original Suit No.7 of 2016, whereby the application filed under Order XXXIX Section 151 of the CPC, C, by the plaintiffs appellants for temporary injunction, has been dismissed by the Trial Court below. 3. The suit for permanent injunction was filed by the plaintiffs in the Court below, bringing an action for passing off against the defendant, alleging that defendant was infringing the intellectual property right of the plaintiffs in using the trade mark "CHHAGANLAL" or "CHHAGANLAL DAYALJEE". According to the plaintiffs, they are in the business of buying, marketing, trading, retailing and selling of the jewelries and ornaments made of gold, silver, diamond, precious metals and crystal stones, in the town of Jamshedpur, from sometimes in the year 1918, which was established by their forefather Late Chhaganlal Dayaljee, under the trade name, "CHHAGANLAL DAYALJEE". In course of time, the business augmented and carried a tremendous goodwill and reputation in the market. Late Chhaganlal Dayaljee died in the year 1965 and thereafter the business was carried by his descendants, i.e., the plaintiffs and family members, under the name and style of "CHHAGANLAL DAYALJEE", and "CHHAGANLAL" was used as trade mark, and they also opened several branches. They also applied for, and obtained registration over the trade mark "CHHAGANLAL" or "CHHAGANLAL DAYALJEE" under the Trade Marks Act, and their turnover was exceeding Rs.55 crores in the year 2014-15. 4. The plaintiffs'' further case is that on or about February, 2015, the plaintiffs learnt that the defendant had opened a shop in the name and style ''Chhaganlal Gopalji and Chhaganlal Madanlal & Sons'', for the same business at Jamshedpur, using the trade mark "CHHAGANLAL" of the plaintiffs, with the dishonest intention and infringing the trade mark of the plaintiffs, as the same is identical and deceptively similar to the plaintiffs'' trade mark, and also copied the logo, bills and the other publicity materials of the plaintiffs. According the plaintiffs, defendant was earlier trading under the name and style of Santosh Prasad Soni. The name of his late father was Gopal Prasad Soni. According the plaintiffs, defendant was earlier trading under the name and style of Santosh Prasad Soni. The name of his late father was Gopal Prasad Soni. After the death of his father, the defendant changed his father''s name to Chhaganlal Verma and got a PAN Card prepared showing himself to be the son of Late Chhaganlal Verma, and had deliberately adopted the said trade mark with attempt to flitch upon the goodwill and reputation of the plaintiffs'' trade mark. Stating, that the dishonest use of the plaintiffs trade mark by the defendant constitutes the act of passing off and infringement of the trade mark of the plaintiffs, the plaintiffs filed the suit praying for permanent and perpetual injunction restraining the defendant from using the plaintiffs'' registered trade mark ''CHHAGALAL'' in his shop and business premises. 5. Upon notice, defendant contested the suit and filed his written statement, stating that the suit was barred by law of limitation, estoppel and acquiescence, and denying the allegations made in the plaint, and stating inter alia, that the defendant is not running any business in the name and style ''Chhaganlal'', or ''Chhaganlal Dayaljee'', or ''Chhaganlal Gopalji and Chhaganlal Madanlal & Sons'', and asserting that he has named his shop ''Chhaganlal Gopaljee Sons Jewellars'' after the name of his father, who was Chhaganlal Verma, which is different from the plaintiffs'' shop "CHHAGANLAL DAYALJEE". It is also stated by the defendant that he is not using the brand name of plaintiff and there is no similarity between the display boards of the plaintiffs'' shop and defendant''s shop. Plaintiffs have no shop named "CHHAGANLAL", nor have they any trademark as "CHHAGANLAL". According to the defendants'' case, the defendants started his shop in the year 2006 with a different display board and there was no comparison between the display boards of the shops of the plaintiffs and defendant, nor they were deceptively similar. According to the defendant''s case, the plaintiffs had also got the notice published in the newspapers on 15th October 2007, stating that the shop with the similar name of the plaintiffs'' shop was opened in Mango area, and clarifying that the plaintiffs shop had no connection with the said shop, nor there was any family relationship between the plaintiffs and the defendant, and accordingly, the customers were apprised not be to be deceived or confused by the name of the said shop. 6. 6. During the pendency of the suit, an application for temporary injunction was also filed by the plaintiffs under Order XXXIX Rules 1 & 2 of the CPC, read with Section 151 of the CPC, praying for temporary injunction. 7. The defendant objected the prayer for temporary injunction, stating that on the one hand the suit was filed with the statement that plaintiffs learnt in the month of February 2015 that such shop had been opened by the defendants in Mango area, but on the other, the notice warning the customers was got published by them on 15th October 2007, and accordingly, the plaintiffs had not moved the Court with clean hands. It is also the case of the defendant that after giving this notice in the newspaper on 15.10.2007, the plaintiffs sat tight and did not take any action till the year 2016, when the suit was filed, thus allowing the defendants to make huge investments in the shop and running the shop for about eight long years without any interruption from the side of the plaintiffs, which showed that there was acquiescence in favour of the defendant by the plaintiffs for encouraging the defendants to continue with the business in the name and style ''Chhaganlal Gopaljee Sons Jewellars''. 8. On the basis of the pleadings of the parties, the Court below framed the issues whether the plaintiffs had a prima facie case for temporary injunction, whether they had the balance of convenience in their favour, and whether the plaintiffs shall suffer irreparable loss in case, relief of temporary injunction was denied to them. All these issues were decided by the Court below against the plaintiffs and in favour of the defendant, and accordingly, by the impugned order dated 17.4.2017, the application filed for temporary injunction was rejected by the Trial Court below. 9. As regards the allegation that the defendant had changed the name of his father after his death, as Late Chhaganlal Verma, the Court below held that this question could be decided only upon entering into the evidence adduced by both the parties. The Court below has found that both the shops are located at different places. The plaintiffs'' shop is located at Bistupur area, whereas the defendant''s shop is located at Mango area, in Jamshedpur town. The Court below has found that both the shops are located at different places. The plaintiffs'' shop is located at Bistupur area, whereas the defendant''s shop is located at Mango area, in Jamshedpur town. The Court below has also discussed the dissimilarities in the display boards of both the shops and has found that it cannot be said that the display board of the shop of the defendants was deceptively similar to the display board of the shop of the plaintiffs, and accordingly, it has been held that the plaintiffs had no prima facie case in their favour. 10. On the issues of balance of convenience and irreparable loss, the Court below has found that in the year 2014-15, the annual turnover of the shop of the plaintiffs was Rs.55 crores. The defendant was running his shop from about the year 2007, but there was nothing on record to show that due to the defendant''s shop, plaintiffs had suffered any loss, and accordingly, both the issues of balance of convenience and irreparable loss were also decided against the plaintiffs, and accordingly, the application for temporary injunction was dismissed. 11. Learned counsel for the appellant has submitted that the impugned order passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as, the Trial Court has entered into the irrelevant facts in deciding the issues. Learned counsel has submitted that the Court below has discussed the dissimilarities between the display boards of the shops of the defendant and the plaintiffs, but had not discussed the similarities, to find out whether the similarities between the displays boards were deceptively similar. It is submitted by learned counsel that dissimilarities were not required to be taken into consideration, rather the similarities were required to be taken into consideration, for deciding whether there was infringement of the trade mark of the plaintiffs, and in case it is found that the trade name used by the defendant was deceptively similar to that of the plaintiffs, the plaintiffs shall have the prima facie case and balance of convenience and shall also be suffering the irreparable loss, so as to make out a case for temporary injunction. In support of his contention, learned counsel for the appellants has placed reliance upon the decision of the Hon''ble Apex Court in Cadila Health Care Ltd. Vs. In support of his contention, learned counsel for the appellants has placed reliance upon the decision of the Hon''ble Apex Court in Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73 , wherein it has been held that while dealing with the cases relating to passing off, one of the important tests which has to be applied in each case is whether the misrepresentation made by the defendant is of such a nature as is likely to cause an ordinary consumer to confuse one product for another due to ''similarity'' in marks and other surrounding factors. 12. Learned counsel for the appellant has also submitted that similarly, only due to fact that the shops of the plaintiffs and defendants were situated in two localities, the relief of temporary injunction could not be denied. It is also submitted by learned counsel for the plaintiffs that the plaintiffs were not required to prove the actual damages in order to succeed in an action for passing off and infringement of the trade mark, rather the likelihood of the damage is sufficient to grant the temporary injunction. Learned counsel accordingly, submitted that the Trial Court below has committed a manifest error of law in holding that the plaintiffs failed to prove any loss, taking into consideration the gross turnover of the plaintiffs in the year 2014-15, while deciding the issues of balance of convenience and irreparable loss against the plaintiffs. In support of his contention, learned counsel for the appellants has placed reliance upon the decision of the Hon''ble Apex Court in Laxmikant V. Patel Vs. Chetanbhai Shah & Anr., (2002) 3 SCC 65 , wherein it has been held that the plaintiff does not have to prove the actual damage in order to succeed in action for passing off, and likelihood damage is sufficient. It is further held in this case that the distance of 4 to 5 Km between the plaintiffs'' business and the defendants'' business does not matter much. 13. Learned counsel for the appellants has also submitted that the appellants are using the trade name "CHHAGANLAL" since the year 1918 itself, whereas admittedly, the defendant has entered into this trade in the year 2006, and as such the plaintiffs are the prior users of the aforesaid trade name. 13. Learned counsel for the appellants has also submitted that the appellants are using the trade name "CHHAGANLAL" since the year 1918 itself, whereas admittedly, the defendant has entered into this trade in the year 2006, and as such the plaintiffs are the prior users of the aforesaid trade name. It is submitted that it is well settled principle of law that the rights of prior user are superior than that of registration and are unaffected by the registration rights. Learned counsel has placed reliance upon the decision of Hon''ble Apex Court in S. Syed Mohideen Vs. P. Sulochana Bai, (2016) 2 SCC 683 , wherein the law has been laid down as follows:- "30.5. The above were the reasonings from the provisions arising from the plain reading of the Act which gives clear indication that the rights of prior user are superior than that of registration and are unaffected by the registration rights under the Act. *** *** *** 31.1. Traditionally, passing off in common law is considered to be a right for protection of goodwill in the business against misrepresentation caused in the course of trade and for prevention of resultant damage on account of the said misrepresentation. The three ingredients of passing off are goodwill, misrepresentation and damage. These ingredients are considered to be classical trinity under the law of passing off as per the speech of Lord Oliver laid down in Reckitt & Colman Products Ltd. v. Borden Inc. which is more popularly known as "Jif Lemon" case wherein Lord Oliver reduced the five guidelines laid out by Lord Diplock in Erven Warnink Besloten Vennootschap v. J. Townend & Sons (Hull) Ltd. ("the Advocaat case") to three elements: (1) goodwill owned by a trader, (2) misrepresentation, and (3) damage to goodwill. Thus, the passing off action is essentially an action in deceit where the common law rule is that no person is entitled to carry on his or her business on pretext that the said business is of that of another. This Court has given its imprimatur to the above principle in Laxmikant V. Patel v. Chetanbhai Shah. 31.2. The applicability of the said principle can be seen as to which proprietor has generated the goodwill by way of use of the mark/name in the business. This Court has given its imprimatur to the above principle in Laxmikant V. Patel v. Chetanbhai Shah. 31.2. The applicability of the said principle can be seen as to which proprietor has generated the goodwill by way of use of the mark/name in the business. The use of the mark/carrying on business under the name confers the rights in favour of the person and generates goodwill in the market. Accordingly, the latter user of the mark/name or in the business cannot misrepresent his business as that of business of the prior right holder. That is the reason why essentially the prior user is considered to be superior than that of any other rights. --------." (Emphasis supplied). 14. Further reliance has been placed by learned counsel for the appellants upon the decision of the Apex Court in Neon Laboratories Limited Vs. Medical Technologies Limited & Ors., (2016) 2 SCC 672 , wherein it has been held that the first in the market test has always enjoyed pre-eminence, and if the plaintiffs had already been using the trade mark well before the defendants, the plaintiffs had a prima facie case, and the other two factors in an interim injunction, namely, the balance of convenience and the irreparable loss shall also be in favour of the plaintiffs and if the temporary injunction be denied, they could suffer a potential loss of goodwill and business. 15. Learned counsel for the appellants also placed reliance upon a decision of Hon''ble Apex court in Midas Hygiene Industries (P) Ltd. & Anr. Vs. Sudhir Bhatia & Ors., (2004) 3 SCC 90 , wherein it has been held as follows:- "5. The law on the subject is well settled. In cases of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest." 16. Placing reliance on these decisions, learned counsel for the appellants has submitted that the Trial Court below has committed a grave error of law in refusing the relief of temporary injunction to the plaintiffs, by taking irrelevant factors into consideration and leaving the relevant factors, which were required to be taken into consideration. 17. Placing reliance on these decisions, learned counsel for the appellants has submitted that the Trial Court below has committed a grave error of law in refusing the relief of temporary injunction to the plaintiffs, by taking irrelevant factors into consideration and leaving the relevant factors, which were required to be taken into consideration. 17. Learned counsel for the respondent on the other hand has opposed the prayer and drew our attention towards their counter affidavit to show that the appellants had applied for registration of the trade mark ''CHHAGANLAL'', which had been objected by the defendant. It is submitted that ''CHHAGANLAL'' is not the registered trade mark of the plaintiffs and accordingly, the plaintiffs have no exclusivity in the name of ''CHHAGANLAL''. Learned counsel has drawn our attention towards paragraph 19 of the plaint, wherein, it is stated that on or about February, 2015, the plaintiffs came to learn that the defendants had opened up a shop in the name of ''Chhaganlal Gopalji and Chhaganlal Madanlal and Sons''. Learned counsel pointed out that on 15.10.2007, a notice was got published by the defendant in the newspapers warning the customers at large that a showroom had been opened in the name resembling the showroom of the plaintiffs and the customers were informed that the plaintiffs have no concern with that showroom and they should not got deceived or confused, as the said showroom is not the branch of the plaintiffs. Learned counsel submitted that after giving this notice in the newspapers on 15.10.2007, plaintiffs sat tight and did not take any action till the year 2016, when the suit was filed, thus, allowing the defendants to make huge investments in the shop and running the shop for about eight long years, without any interruption from the side of the plaintiffs. Learned counsel submitted that there was an acquiescence in favour of the defendant by the plaintiffs for using the mark, and in a way encouraging the defendant to continue with the business and making investments in the business. 18. In this connection, learned counsel for the respondent has placed reliance upon a decision of the Hon''ble Supreme Court in M/s Power Control Appliances and Ors. Vs. Sumeet Machines (P) Ltd., (1994) 2 SCC 448 wherein the law has been laid down as follows:- "26. Acquiescence is sitting by, when another is invading the rights and spending money on it. In this connection, learned counsel for the respondent has placed reliance upon a decision of the Hon''ble Supreme Court in M/s Power Control Appliances and Ors. Vs. Sumeet Machines (P) Ltd., (1994) 2 SCC 448 wherein the law has been laid down as follows:- "26. Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name etc. It implies positive acts; not merely silence or inaction such as is involved in laches. In Harcourt v. White Sr. John Romilly said: "It is important to distinguish mere negligence and acquiescence." Therefore, acquiescence is one facet of delay. If the plaintiff stood by knowingly and let the defendants build up an important trade until it had become necessary to crush it, then the plaintiffs would be stopped by their acquiescence. --------------. *** *** *** 28. ---------------. Dealing with the question of standing by in Codes v. Addis and Son at p. 142, Eve, J. said: ''For the purpose of determining this issue I must assume that the plaintiffs are traders who have started in this more or less small way in this country, and have been continuously carrying on this business. But I must assume also that they have not, during that period, been adopting a sort of Rip Van Winkle policy of going to sleep and not watching what their rivals and competitors in the same line of business were doing. --------. But the question is a wider question than that : ought not he to have known : is he entitled to shut his eyes to everything that is going on around him, and then when his rivals have perhaps built a very important trade by the user of indicia which he might have prevented their using had he moved in time, come to the Court and say : "Now stop them from doing it further, because a moment of time has arrived when I have awakened to the fact that this is calculated to infringe my rights." Certainly not. ------------. ------------. Delay simpliciter may be no defence to a suit for infringement of a trade mark, but the decisions to which I have referred to clearly indicate that where a trader allows a rival trader to expend money over a considerable period in the building up of a business with the aid of a mark similar to his own he will not be allowed to stop his rival''s business. If he were permitted to do so great loss would be caused not only to the rival trader but to those who depend on his business for their livelihood. -------- ---------------. " (Emphasis supplied). 19. In this connection learned counsel for the respondent has also placed reliance upon a decision of the Bombay High Court in Essel Propack Ltd. Vs. Essel Kitchenware Ltd.,2016 SCCOnLineBom 937 , wherein, it has been held as follows:- "40. Perhaps it is time to rid ourselves once and for all of this strange conflation of delay and acquiescence, and of this habit of saying that since mere delay is no reason to refuse an injunction that is otherwise warranted, therefore there can be no acquiescence; and, too, of this equally fallacious notion that when we speak of a positive act in the context of acquiescence in intellectual property, we mean and mean only some sort of pinpointed go-ahead. If that were so, there would be no distinction between consent and acquiescence. The latter is a species of estoppel, and for that reason, it is both a rule of evidence and a rule in equity. --------------. Acquiescence means assent to an infringement of rights, either express or implied from conduct, by which the right to equitable relief is normally lost. It takes place when a person, with full knowledge of his own rights and of any acts which infringe them, has either at the time of infringement or after infringement, by his conduct led the persons responsible for the infringement to believe that he has waived or abandoned his rights. It literally means silent assent. It imports placid consent, concurrence, acceptance, or assent. The equitable doctrine of acquiescence may be taken to be that if a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right and makes no objection while the act is in progress, he cannot afterwards complain. It literally means silent assent. It imports placid consent, concurrence, acceptance, or assent. The equitable doctrine of acquiescence may be taken to be that if a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right and makes no objection while the act is in progress, he cannot afterwards complain. A proprietor of the trade mark who knowingly watches his competitor grow in the market and takes no action can claim no exclusivity in his own trade mark. He is deemed to have affirmed his rival''s use of the mark in question. If the owner of a registered trade mark stands by and allows a man to spend considerable amounts on sales and promotional activities in order to acquire a reputation, he cannot then assert his rights in order to stop the business of another. Where acquiescence in the infringement amounts to consent, it is a complete defence." (Emphasis supplied). 20. Learned counsel further submitted that in any view of the matter, the suit for permanent injunction is still pending, in which, same issues have to be decided on the basis of the evidence adduced by both the parties, and in absence of such evidence, the Court below was perfectly justified in denying the relief of temporary injunction to the plaintiffs. Learned counsel for the respondent accordingly, submitted that no case of temporary injunction was made out by the plaintiffs and there is no illegality in the impugned order passed by the Trial Court below. 21. In reply to the submission of the learned counsel for the respondents, learned counsel for the appellants has submitted that there was no plea of acquiescence in written statement filed by the defendant and accordingly, this ground could not be taken by the respondent. It is further submitted that law is well settled that in order to claim the defence of acquiescence, there must be express assent by the plaintiff to the defendant''s using the mark and also encouraging the defendants to continue with the business, and that the person having the trade mark right cannot be expected to run after every infringer of the right at the cost of his business. Learned counsel for the appellants has placed reliance upon the decision of the Delhi High Court in Make My Trip (India) (P) Ltd. Vs. Learned counsel for the appellants has placed reliance upon the decision of the Delhi High Court in Make My Trip (India) (P) Ltd. Vs. Make My Travel (India) (P) Ltd., pronounced on 18th October 2019, wherein it has been held as follows:- "25. The law relating to acquiescence is well established. In Hindustan Pencils Private Limited v. India Stationary Products Co, (1990) AIR Delhi 19 , this Court dealt elaborately with the question of delay and acquiescence. It has been held that in order to claim the defence of acquiescence, there should be a tacit or an express assent by the plaintiff to the defendant''s using the mark and in a way encouraging the defendants to continue with the business. It is as if the plaintiff wants the defendant to be under the belief that the plaintiff does not regard the action of the defendant as being violative of the plaintiff''s rights. In Dr. Reddy Laboratories Pvt. Ltd. v. Reddy Pharmaceuticals,2013 SCCOnLineDel 3626, the Court took note of the fact that the owners of trademarks or copyrights cannot be expected to run after every infringer and thereby remain involved in litigation at the cost of their business time, but can wait till the time the user of their name starts harming their business interests and starts misleading and confusing their customers. In Emcure Pharmaceuticals Ltd. v. Corona Remedies Pvt. Ltd,2014 SCC OnLineBom1064, the Bombay High Court extensively discussed the defence of acquiescence as available to an alleged infringer of trademark. It was held that a mere failure to sue without a positive act of encouragement is no defence and is not acquiescence. Further, examining the concept of "acquiescence", it was observed that acquiescence is a species of estoppel, a rule in equity and a rule of evidence and it is essential to the acquiescence doctrine that it is accompanied by an encouragement or an inducement: he who possesses a legal right must have encouraged the alleged violator of that right in acting to the latter''s detriment, confident in the knowledge that the former is not asserting his rights against the violator. Acquiescence is sitting by when another invades your rights and spends money in the doing of it. It is conduct incompatible with claims of exclusivity, but it requires positive acts, not mere silence or inaction (of the stripe involved in the concept of laches). Acquiescence is sitting by when another invades your rights and spends money in the doing of it. It is conduct incompatible with claims of exclusivity, but it requires positive acts, not mere silence or inaction (of the stripe involved in the concept of laches). Acquiescence is not mere negligence or oversight. There must be the abandonment of the right to exclusivity. In Midas Hygiene Industries v. Sudhir Bhatia, (2004) 28 PTC 121 (SC) the Apex Court held that mere delay in bringing action is not sufficient to defeat grant of injunction in infringement cases." (Emphasis supplied). 22. Having heard learned counsels for both the sides and upon going through the record, we find that the defendant has taken the defence of acquiescence in para 3 of his written statement. Thus, it cannot be said that this plea has not been taken by the defendant. In his show cause to the injunction application, the defendant has also stated about the notice published by the plaintiff in the newspapers on 15.10.2007. The statement of the plaintiffs in paragraph 19 of their plaint that they first came to learn about the shop of the defendant in the month of February 2014, appears to be prima facie incorrect in view of the notice published by the plaintiffs in the newspapers on 15.10.2007, which has also been taken note of, by the Trial Court below. This clearly shows that in the year 2007, the plaintiffs were in full knowledge of the fact that the defendants had opened a shop using "Chhanganlal" in the name of their shop, but till the year 2016, nothing had been brought on record to show that there was any objection on behalf of the plaintiffs to the running of the shop of the defendant. This delay in filing the suit clearly shows that for a long period, the defendant was allowed to proceed with the business in the name and style "Chhaganlal Gopaljee Sons Jewellars", making investments in his shop. Thus, if for such a long period, the balance of convenience of the plaintiffs was not disturbed, or he had not suffered any such irreparable loss, knowing full well that the defendant was running his shop using the trade name "CHHAGANLAL", this indicates that the plaintiffs had no prima facie case as well in their favour. 23. Thus, if for such a long period, the balance of convenience of the plaintiffs was not disturbed, or he had not suffered any such irreparable loss, knowing full well that the defendant was running his shop using the trade name "CHHAGANLAL", this indicates that the plaintiffs had no prima facie case as well in their favour. 23. In the present case, there is prima facie reason to believe that the plaintiffs have not approached the Court with clean hands, as the notice published by the plaintiffs in the newspaper on 15.10.2007, is contrary to the statement of the plaintiffs in paragraph 19 of their plaint, that they first came to learn about the shop of the defendant in the month of February 2014. There is no denial of the fact that the said notice was not got published by the plaintiffs. This apart, the unexplained delay from the year 2007 to 2016, when the suit was filed, clearly shows that a Rip Van Winkle attitude was adopted by the plaintiffs, thus, allowing the defendant to grow in the market, making investments in his business, using the name and style "Chhaganlal Gopaljee Sons Jewellars". This delay in approaching the Court cannot be termed as ''delay simpliciter'', or a ''mere delay'', so as to attract the law laid down in Midas Hygiene Industries''s case (supra), in favour of the plaintiffs. Rather the case is fully covered by the decisions of the Hon''be Apex Court in M/s Power Control Appliances''s case and Essel Propack Ltd.''s case (supra). In this connection reliance may also be placed upon a very recent decision of the Hon''ble Apex Court in Toyota Jidosha Kabushiki Kaisha Vs. Prius Auto Industries Ltd. & Ors., (2018) 2 SCC 1 , wherein the unexplained delay in approaching the Court has been held to be sufficient reason for denying the relief of injunction, in the case of action of passing off and infringement of trade mark. "40. -------------. We cannot help but also to observe that in the present case the plaintiff''s delayed approach to the courts has remained unexplained. Such delay cannot be allowed to work to the prejudice of the defendants who had kept on using its registered mark to market its goods during the inordinately long period of silence maintained by the plaintiff." 24. -------------. We cannot help but also to observe that in the present case the plaintiff''s delayed approach to the courts has remained unexplained. Such delay cannot be allowed to work to the prejudice of the defendants who had kept on using its registered mark to market its goods during the inordinately long period of silence maintained by the plaintiff." 24. So far the allegation against the defendant that after the death of his father, the defendant dishonestly changed his father''s name to Chhaganlal Verma and got a PAN Card prepared showing himself to be the son of Late Chhaganlal Verma, for using the trade name of the plaintiffs, the Trial Court has given the finding that this question could be decided only upon entering into the evidence adduced by both the parties. As such, at this stage, it cannot be held that the adoption of the mark "CHHAGANLAL", in the name of his shop by the defendant was with the dishonest intention. On this score also, the decision in Midas Hygiene Industries''s case (supra), is of no help to the plaintiffs at this stage. 25. In the facts of this case, we are of the considered view that all the three important issues, i.e., whether the plaintiffs had a prima facie case for temporary injunction, whether they had the balance of convenience in their favour, and whether the plaintiffs shall suffer irreparable loss in case, relief of temporary injunction was denied to them, have been correctly decided by the Trial Court below against the plaintiffs and in favour of the defendants, which need no interference by this Court. 26. For the foregoing reasons, we do not find any illegality in the impugned order dated 17.04.2017, passed by the learned Presiding Officer, Commercial Court, Jamshedpur, in Original Suit No.7 of 2016. There is no merit in this appeal and the same is accordingly, dismissed. The Court below is however directed to proceed with adjudication of the suit for permanent injunction expeditiously, and decide the same on the basis of the evidence brought on record by both the parties, and in accordance with law, without being prejudiced by its order dated 17.04.2017, or by this order.