S. Abdul Nazeer, J.
1.The defendant in O.S. No. 11413/1998, on the file of XIII Additional City Civil Judge, Mayohall, Bangalore has filed this appeal challenging the order on I.A.I. dated 16/08/2001.
2. For the sake of convenience, the parties are referred to in their respective ranks before the Trial Court.
3. The plaintiffs have filed the said suit for permanent injunction restraining the defendant, its partners, agents, servants, employees, assigns and representatives from in any way using and advertising, directly or indirectly the word MAC as a trade mark or part of its trading style or any other name similar thereto in relation to its business/ goods, so as to pass off or enable others to pass off the defendants business and goods as and for the business and goods of the plaintiffs; They have sought for similar injunction restraining the defendant from infringing the plaintiff''s registered trade mark/name "McDonald''s" and "BIG MAC" or from using any other name similar thereto as a trademark, business name or trading style or as a part thereof in relation to its business/goods; They have further sought for an account of profits made by the defendant and for directing the defendant to deliver to the plaintiffs on affidavit all goods, sales promotion literature, stationery and printing blocks in its possession or power bearing the name/mark MAC or any other name/Mark deceptively similar to the plaintiff''s trade mark/name "McDonald''s" and "BIG MAC" for destruction.
4. In the plaint the plaintiffs have contended that in the year 1946, Dick and Maurice (Mac) McDonald founded their first McDonald''s restaurant. Gradually they have increased their restaurant and in the year 1983 they have opened their 100th McDonald''s in England. They have opened their restaurant in United State, England, China and in India, According to them, they have over 23,000 McDonalds''s restaurant in and around 110 countries and territories of the world. In India they have first opened McDonald''s restaurant on October 13, 1996 at Vasant Vihar, New Delhi and since then ten more restaurants have started operation at Delhi, NOIDA and Mumbai. The first plaintiff is proprietor of the trade mark Mcdonald''s and BIG MAC and same has been registered as trade marks in many countries and territories of the world.
5. That with an intention to use its world famous trademarks, the 1st plaintiff applied for registration of some of its trademarks way back in April 1983 in India and that the 1st plaintiff is the registered proprietor in India in respect of the following trade marks.
S.No. Appl. No. Class Date Trade Mark i) 404090 32 April 11,1983 McDonald''s & corporate logo M. ii) 404101 32 April 11,1983 Big Mac iii) 404103 29 April 11,1983 Big Mac iv) 404107 29 April 11,1983 Mcdonald''s & Corporate logo M. v) 404108 30 April 11,1983 McDonald''s & corporate logo M vi) 467568 B 30 Feb. 12,1987 Ronald Mcdonald & Clown figures vii) 467569 B 29 Feb. 12,1987 Ronald McDonald & Clown figures
6. It is their further case that 1st plaintiff has made applications on August 12, 1993 in India for registration of the trade mark McDonald''s and corporate logo ''M'' and that the said application are pending registrations. In paragraph 7 of the plaint they have given the details of the applications made for registration of the trade mark. According to them the word ''Mac/MC is a prominent and significant feature of the plaintiffs various trademarks and that they have been using extensively the said trade marks in McDonald''s restaurants operating in many countries of the world including India. The trading style/corporate name "McDonald''s and other trademarks, "Big Mac" and "McDonald''s and corporate logo M", "Ronald McDonald & Clown figures", "McBurger" "McNuggests" have been in such extensive use in several countries and they have acquired substantial reputation and goodwill and are recognised by the trade and the public as being associated and identified with the restaurants business and goods of the plaintiffs. It is their case that in order to promote a global reputation, the 1st plaintiff has taken numerous steps throughout the years. They have used promotional efforts at sponsoring sports and other events in many countries, which are picked up on the television and seen by viewers all over the world, such as Olympic Games, the Soccer World Cup, Cricket and Tennis Tournaments and other competitions.
7. That in or about September, 1993, when it was brought to their notice that the defendant is using the word "MC" as part of its trading style for a fast food restaurant with a malafide intention to imitate the mark of the 1st plaintiff and the use of the word ''MAC'' by the defendant was likely to cause confusion and deception in the minds of the public and trade and therefore they have issued a legal notice on September 21, 1993, calling upon the defendant to immediately cease and desist from using the mark, MAC on the restaurant or any word or device imitative thereof in connection with their business of running a restaurant, snack shop or cafeteria. It is their case that they have received a reply from the defendant stating that the correct trading name and style is sterling Mac Fast food, which is displayed prominently on their fast food retail outlet. The 1st plaintiff''s Attornies sent rejoinder on November 16, 1993 to the defendant''s Attornies wherein it was pointed out that the word sterling''s used by the defendant is not visible from the front side of the restaurant. The mark MAC is prominently displayed and used by the defendant for its restaurants and retail outlets and either the word STERLING is not written at all or it is written in an insignificantly small font as is evident from the photographs. That in order to mutually settle the matter amicably and avoid any unnecessary litigation, the 1st plaintiff''s attornies have sent a letter on October 24, 1997 requesting the defendant to use/ write the word STERLING''S in a bold font equivalent to that of the other word''s MAC FAST FOOD and be prominently displayed at all places in respect of their restaurants as STERLING''S MAC FAST FOOD to avoid any further confusion and deception. They have received a reply to the said letter expressing their inability to comply with the requisition of the 1st plaintiff''s. In the light of the aforesaid pleadings they have sought for a permanent injunction against the defendant has stated above.
8. The plaintiffs have also filed an application seeking an order of Temporary Injunction under Order 39 Rule 1 and 2 of C.P.C . They have reiterated the plaint averments in the affidavit in support of I.A.I.
9. The defendant has filed the Written Statement, contending that it is a partnership firm commenced on 1/7/1982 and its partners at the time of inception of the partnership are Mr. Kulangara Thottiyil John Mathew and Mr. Ponnamchathayil Ammunny Aboobaker. Mr. Aboobaker retired on 31/3/1992 and Mrs. Aleyamma Mathew and Mr. Mac Mathew were taken in as partners, by a partnership deed dated 1/4/1992. Master Malvin Mathew a minor, was also made a partner with equal shares along with the other three partners. Prior to the formation of the defendant partnership, the partner Mr. John Mathew, was running restaurants in Dubai and Doha, After the formation of the defendant partnership firm, the defendant entered into a Deed of Lease, dated 5/11/1982, in respect of the premises in Prestige Complex, Church Street, Bangalore. Since the business expanded, the defendant took another premises on lease bearing No. 88 and 88/1, M.G Road, Bangalore by a lease deed dated 14/2/ 1986. By Lease Deed dated 10/7/1986, the defendant took another premises being the back portion of ground floor of premises bearing Old No. 1A, New No. 1/4, Church Street, Bangalore. The defendant has purchased a premises in Prestige Complex, Church Street, Bangalore by deed of sale dated 23/11/1988. By a Lease Deed dated 27/8/1992, the defendant took a premises on lease bearing Nos. 1 and 2 on the Ground Floor in Anjaneya Complex, Kodihalli, H.A.L Sanitary Board, Bangalore.
10. In order to carry on business in India the defendant''s partners obtained permission from the Reserve Bank of India on 24/07/1982, permitting the defendant to carry on business. Power was sanctioned by the KEB on 14.10.1982. Licence was granted to import certain items as per licence dated 22/12/1982 and the Corporation of city of Bangalore has issued licence in favour of the defendant''s. No objection certificate was issued by the Medical Officer of Health and the certificate is dated 25.6.1984. The defendant has obtained Certificate of Registration under the Central Sales Tax (Registration and Turnover) Rules, 1957. Certificates have been obtained under the Karnataka Tax on Professions, Trades, Callings and Employment Act, 1976 dated 8.3.1985 and 12.3.1985. Registration of the employees under the ESI Act, was obtained by letter dated 7.12.1985. Enrolment of the employees under the Act was obtained as per letter dated 3.2.1988. The Deputy Labour Commissioner, by order dated 28.08.1992, the draft standing order of the defendant were certified. They have spent substantial amount towards advertising of their business. Documents regarding statement of sales turnover, year wise have been produced.
11. The defendant has contended that the business was started mainly by Mr. John Mathew, who was running the Sterling Group in Dubai and Doha. When he decided to open a branch in India, he decided to name the same after his on, Mac Mathew, hence the name Sterling Mac Fast Food. Mr. Mac Mathew was born in 1973 and that after the retirement of its partner, Mr. Aboobaker, Mac Mathew has been inducted into the partnership. The choice of the name Mac having arisen from the. name of Mac Mathew was bonafide and no malafides can be attached to the same, since it is the name of one of the partners of the defendant.
12. It is contended that the trademark of the defendant and that of the plaintiff are totally different and that the use of the word Mac is bonafide. It is their contention that the defendant is first in point of time to use the word Mac as a single entity and the plaintiff has always used the same with the word Big i.e., "Big Mac", and not "Mac" alone. The name of the plaintiff is "Mcdonald''s and not "Mac". Their application for registration of the name Sterling Mac Fast Food is pending before the Competent Authority. According to them the word ''MAC'' is the name of a person, in the present case "Mac Mathew" and that the same is protected by the Section 34 of the Trade Marks Act. It is pointed out that the word Mac & Mc are common name in India, such as McDowel''s and Mac Systems, Mac Charles India Ltd., Mac Fab Engineering, Mac Industries Ltd., Mac Met India Pvt. Ltd., Macmillan Indian Ltd., Mac Millan India Ltd., Mac Millan Computers Ltd., Mactools, etc., It is their case that the plaintiffs do not have the registered trademark in respect of the word "Mac" and that the plaintiff is trying to dictate terms to other businesses, and the crux of the issue is not the use of the word "Mac" but the size of the word sterling.
13. The defendant has filed detailed objections to the application I.A.I. reiterating the contentions urged in the Written Statement.
14. On the basis of the rival contentions, the Trial Court has framed the following points for consideration:
1. Whether the plaintiff has placed a prima facie case for grant of relief as prayed for in I.A.I under Order 39 Rules 1 and 2 of C.P.C.?
2. Whether the balance of convenience is in favour of the plaintiffs as prayed for in I.A.I?
3. Whether the plaintiff will suffer irreparable injury and harm in case I.A.I, is not allowed?
4. What order?
15. The Trial Court has allowed I.A. No.I filed by the plaintiffs and has granted an order of temporary injunction as prayed for. In the course of its order the Trial Court has held that the suit of the plaintiff is not barred by limitation. This Court has admitted the appeal on 5.9.2001 and has stayed the order of the Trial Court. There is no stay of further proceedings of the suit.
16. I have heard the learned Counsel for the parties.
17. The learned Counsel for the appellant/defendant submits that the defendant has been running its business in Bangalore since the year 1982 using the trade mark (Sterling Mac Fast Food). One of the partner by name, Mr. Mac Mathew, is the son of its founding partner Mr. K.T. John Mathew, and that the firm name is derived from the name of the son of its founder partner. Thus, use of the word Mac is bonafide, documents produced by the appellant shows that it has been using the trade name Sterling Mac Fast Food since 1982 till this day continuously and uninterruptedly, the plaintiff has commenced his business in India during the year 1996 at Delhi and Bombay and not at Bangalore. The notice was issued by the plaintiff in the year 1998 calling upon the defendant from using the name Mac. The defendant has suitably replied the said notice. After a lapse of 5 years the suit has been filed in the year 1998. The Trial Court has granted an order of Injunction on 16.8.2001 which has been stayed by this Court on 5.9.2001. He further contends that material on record would go to show that large amount of evidence is necessary to support the plaintiffs'' case and that complicated question of law is involved in the suit and the issue arising out of the rival pleadings is a triable issue. He further contends that the word Mac is a common name used by various companies, organizations and firms and the plaintiff cannot have exclusive right to the use word Mac in India.
18. Per contra the learned Counsel for the respondents/plaintiffs submits that the plaintiff has been using the trading style/corporate name McDonalds and other trade names such as Big Mac, etc. He has reiterated the plaint averments as part of his submission. He further contends that the grant of interlocutory injunction is discretionary in nature. This Court cannot interfere with the discretionary order passed by the Trial Court which has been passed reasonably and in a judicial manner.
19. The learned Counsel on both the sides have relied on several decisions in support of their respective contentions. I propose to consider them while considering their respective arguments.
20. It is true that High Court will not interfere with the discretionary order of granting injunction if the discretion has been exercised by the Trial Court reasonably and in a judicial manner. It is well established that the Appellate Court will not interfere with exercise of discretion except where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where the Court had ignored the settled principles of Law regulating grant or refusal of interlocutory injunction. It is equally settled that interlocutory remedy is intended to preserve in status quo, the rights of a party, which may appear on a prima facie case. In the case of
"Usually, the prayer for grant of an interlocutory injunction is '' at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The Court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The interlocutory remedy is intended to preserve in status quo, the right of parties which may appear on a prima facie case. The Court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to the prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations is somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted."
21. The Trial Court in the course of order has held that the suit of the plaintiff is not barred by time. That was not the case pleaded by the defendant. The defendant has mainly pleaded acquiescence. Acquiescence is nothing but sitting by when another is invading the rights and spending the money on it. The other main ground for granting of injunction is that the plaintiff being proprietor of the trade mark, has exclusive right to use the name in relation to the goods in which the trade mark is registered. The Trial Court has not considered the various contentions urged in the Statement of objections. I am of the view that the Trial Court has not exercised its discretion reasonably and in a judicial manner. The Hon''ble Supreme Court in the course of the decision referred to above has stated the object of the interlocutory injunction as follows.
".... is to protect the plaintiff against injury by violation of his rights for which he could not adequately, be compensated any damages recoverable in the action if the uncertainty were resolved in the favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weight one need against another and determined where the balance of convenience'' lies."
22. Learned Counsel for the defendant has taken me through the document produced before the Trial Court, such as partnership deeds dated 1.7.1982 wherein the firm is named as "Sterling''s Mac Fast Food" . Thereafter, the partnership has been reconstituted on 1.4.1992. One of the partner by name P.A. Abubaker has retired from the partnership and wife and son of Mr. John Mathew, by name Mrs. Aleyamam Mathew and son Mac Mathew, have been inducted as partners. Various lease deeds and sale deeds, licences and no objection certificates have been produced from the year 1982 onwards, all in the name of M/s. Sterling''s Mac Fast Food. The defendants have also produced various newspaper cuttings as also the balance sheet from 1985 onwards. It shows that from 1985 onwards the defendants have spent substantial amount towards advertisement charges of their restaurant. The balance sheet also shows the sales tax paid by them each year and their total sales turnover, which has increased substantially each year.
23. It is to be noticed that the plaintiff''s by their notice dated 21.9.1993 have called upon the defendant to desist the defendant from using the mark Mac on their restaurant. The defendants by their reply dated 14.10.1993 have refused to comply with the demand. Again on 24.10.1997 the plaintiffs have called upon the defendants to write the word Sterlings''s in bold font equivalent to that of other words Mac Fast Food. The defendants have once again refused to comply the said demand.
24. The plaintiff''s admit that they have started their restaurant in India for the first time in 1996 at Delhi, Bombay and Noida. Admittedly, they do not have a restaurant at Bangalore. The learned Counsel for the appellant/defendant submits that the plaintiff is not entitled for any injunction. It is their case that they have established their business since 1982 and if the injunction order is granted at this stage the defendants will be ruined. The learned Counsel has referred to the decision of this Court in the case of RANGOON CHEMICAL WORKS (P) LTD., v. ROYAL MEDICALS 1997 P.T.C. 17 wherein, this Court has considered the effect of inordinate delay in bringing action for infringement of trade mark. By the time suit was filed, the defendants'' product has been in the market for nearly 30 years. The Court has considered various aspects, while allowing the appeal and rejecting the application filed by the plaintiff. The relevant passage is as follows:
"In this case there is no tenable explanation for the inordinate delay of at least 20 years in the plaintiff filing the suit. When the defendant''s product has been in the market for nearly 30 years and their sales have gone to Crores of rupees the plaintiff at this stage cannot seek the equitable relies of temporary injunction to stop the defendant using the impugned mark. The learned City Civil Judge has himself noted that the sales of defendant''s product is much more than the sale of plaintiff''s product in India. If the defendant continues to use this mark till the matter is finally decided the plaintiff who has waited all these years cannot complain that he would be put to irreparable injury. On the other grant of temporary injunction would prevent the defendant from carrying on their business which has been developed during the past 3 decades at considerable expense. If the defendants are asked to adopt a new mark even before the rights are finally determined, for their mark, it would cause serious hardship to them. As observed by the Supreme Court one of the factors which will have to be taken into account while granting temporary injunction is whether the defendants are yet to start the business or whether they have started the business recently. Taking into consideration the facts and circumstances of this case it has to be held that the balance of convenience lies not in favour of granting temporary injunction. While refusing the temporary injunction the defendant could be put on some terms to ensure that the plaintiff would not be seriously prejudiced, if ultimately they succeed in the suit."
25. This Court in the case of
The relevant portion is as follows:
"In the instant case as held earlier the plaintiffs knew that the 1st defendant incorporated as company in the year 1990 itself. The plaintiffs themselves through one of the group of companies entrusted certain work to the 1st defendant-company. This fact clearly shows that the 1st defendant has established its business and started carrying on business from the year 1990. Hence, the decision referred to above in my opinion helps the defendants and not the plaintiffs. In the instant case also the plaintiffs knowing fully well that the defendants started their business from the year 1990 onwards stood by and let the defendants to built up their trade till the date of filing of the suit.
Hence, I hold that the conduct of the plaintiffs in keeping quiet till the defendants have established their business disentitles the interim relief in their favour."
26. In this case the defendant has commenced his business in the year 1982 and has been doing the business for the past 20 years under the name and style M/s. Sterling''s Mac Fast Food. Notice was issued in the 1993 by the plaintiff in the year, no action was taken immediately. The plaintiff for the first time commenced its business in the year 1996 that too not at Bangalore. Suit was filed in 1998 and an order of injunction was granted on 16.8.2001, which was stayed by this Court on 5.9.2001. The plaintiffs have not taken action from 1982 till 1998. Therefore, in my opinion the conduct of the plaintiff in keeping quiet till the defendants have established their business disentitles them the interim relief in their favour.
27. The learned Counsel for the respondents submit that Courts have consistently held that if the defendant acts fraudulently with the knowledge that he is violating the plaintiff''s right, even if there is an inordinate delay on the part of the plaintiff in taking action against the defendant the relief of injunction is not denied. He has relied on the decision of the Delhi High Court in the case of
28. In Hindustan Pencils case, the Court was proceeding on an admitted fact that the defendants were using a trade mark similar to that of the plaintiffs. In Rupa & Co. case, the Gujarat High Court has distinguished the judgment of the Court in Kirloskar''s case. The Court has held that delay by itself cannot be a ground for refusing to exercise the discretion of the Trial Court in the matter of granting temporary injunction, it is just one of the consideration in the total amount of consideration.
29. According to the plaintiff, the defendant is using the word Mac as a part of its'' trading style. And the use of the word Mac by the defendant is likely to cause confusion and deception in the minds of the public and trade. The trading style of the plaintiff/Corporate name McDonalds and other trade marks are with the prefix or suffix ''Mac'' or ''Mc''. They have started their business in India in the year 1996. The defendant has been carrying on its business Sterling in Mac Fast Food since 1982. It is contended by the defendant that one of their partner''s name is Mac Mathew and that word Mac and Mc are common names in India, such as McDowell''s, Mac System, Mac Charles India Ltd., Mac Fab Engineering, Mac Industries Ltd., Mac Met India (P) Ltd., Mac Millan India Ltd., Mac Millan Computers Ltd., Mac Tolls, etc. It is their case that Section 34 of the Trade and Merchandise Mark Act 1958 protects a bonafide use by a person of his own name of business ad that the proprietor of a registered user cannot interfere with such use. It is further pointed out that u/s 30(1)(b), the use of a trade mark by a person has been expressly or impliedly consented to, by the proprietor or registered user of the trade mark does constitute an infringement of the right to use the registered trade mark. The learned Counsel has relied on the decision of the Hon''ble Supreme Court in the case of
30. The Hon''ble Supreme Court has held that in order to decide whether the word "dropovit" is deceptively similar to the word "protovit", each of the two words must be taken as a whole. It has further held that the terminal syllable "vit" in two marks is both descriptive and common to the trade and that it is difficult to hold that one will be mistaken or confused with the other. The Court has held as follows:
"It is also important that the marks must be compared as whole. It is not right to take a portion of the word right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in the other case there is no sufficient similarity to cause confusion. The true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark."
31. In the instant case also "Mac" or ''Mc'' are common words which are used by several companies. The defendant has no grievance against those companies, for using the word as prefix or suffix. Paragraph 14 of the written statement gives the particulars of such companies. It is not the case of the plaintiff that identical trading style and corporate logo has been used by the defendant. A overall comparison of the trading name and corporate logo of the plaintiffs and defendants makes it clear that they are not similar. The defendants have assigned reasons for adopting the word ''Mac'' from the year 1982.
32. There is yet another important aspect, which requires consideration, while considering an application seeking injunction. As stated above the plaintiff has commenced its business at Noida, Delhi and Mumbai in the year 1996. On the other hand the defendant has commenced its business at Bangalore since 1982. The plaintiff has to establish that its legal right has been infringed. The Court will not ordinarily grant an interlocutory injunction if a large amount of evidence is necessary to support its case. The proper course in such a case is to ask for the trial of action and the injury must be actual or imminent.
33. In this case there is no explanation for the inordinate delay in filing the suit. The defendant has been doing the business in its present trading style for the past over 20 years. If the defendant continues to use the said mark till the matter is finally decided, the plaintiff who has waited all these years cannot complain that he would be put to irreparable injury. On the other hand if the defendant is asked to adopt a new mark, even before the rights are finally determined, it would cause serious hardship to them.
34. Apart from the decision referred to above, the learned Counsels for the plaintiff has relied on the following decisions:
(i)
(ii) BARABHAI INTERNATIONAL LTD., AND ANR. v. SARA EXPORTS INTERNATIONAL AIR 1988 Delhi 134. In this case the Delhi Court has observed that there was sufficient documentary evidence on record to establish that the trading style of the plaintiffs had acquired very wide reputations and therefore adoption of similar trading style by the defendant was held as an infringement of the plaintiff''s registered trademark.
(in)
(iv) PODDAR TYRES LTD., v. BEDROCK SALES CORPORATION. 1993 PTC 252. In this case the Bombay High Court has rejected the defendants contention as to delay as there was a prima facie strong evidence of infringement and passing off.
(v) P.C. MALLAPPA AND CO., v. MCDONALDS CORPORATION 1999 PTC. 9 In this case appellant was using the logo ''M'' along with the words Mallappa and Co. This Court has held that the logo ''M'' prefixed with the words Mallappa and Co., is similar and identical to that of logo ''M'' used by the respondents. In the said circumstances this Court has rejected the appeal filed by the appellants.
35. The learned Counsel for the defendant has relied on the following decisions, in addition to the decisions referred to earlier:
(i)
(ii)
In all these cases the Courts have refused grant of temporary injunction on the ground of delay, when the suit for infringement of trademark has been filed after a certain period of accrual of cause of action.
(iv) In the case
36. The learned Counsel for the defendant submits that the suit is not maintainable since the director of the company is not authorised to file the suit. He further contends that one of the factors to be considered by the Trial Court while considering the case for temporary injunction is whether prima facie case is made out and prima facie case includes nature of the suit and its maintainability. He has relied on the decisions in
In the case of
37. In the case of COTTON CORPORATION OF INDIA v. UNITED INDUSTRIAL BANK 1983 SC 1272 the Hon''ble Supreme Court has held that when the Court has no jurisdiction to grant perpetual injunction, interim relief could obviously be not granted because the object behind granting interim relief is maintain status quo ante.
38. In the case
The Trial Court has brushed aside the said argument on the ground that it is considering an interlocutory application.
39. As noticed earlier, the Appellate Court would normally not be justified in interfering with the exercise of discretion, unless the order of the Trial Court is arbitrary, capricious, unreasonable or the Court has either not taken into consideration the material facts available on record or has not applied proper legal principles. In this case, I am of the view that the Trial Court misdirected itself, while dealing with the questions that has fallen into considerations. The main issue was the plea of acquiescence and case laws have been relied on by both the parties on this point. The Trial Court instead of given a finding on that point has held that suit is not barred by time. The Trial Court has not even considered the other aspects, such as injury that may be caused to the defendant while allowing I.A.I. since the defendant has been doing the business under its trade name continuously and uninterruptedly since 1982. Unless the disputed facts are thrashed out at the trial, the plaintiff is not entitled for injunction, particularly when large amount of evidence is required for establishing the case. The Trial Court has not even considered the fact that to grant an order of injunction the injury must be actual and imminent. In these circumstances I am of the view that this Court should interfere with the order of the lower Court. I am of the view that the plaintiff''s have not made out either prima facie case or balance of convenience in their favour.
40. It is to be noted here that the suit was filed on 25.11.1998. The Trial Court granted an order of temporary injunction on 16.8.2001. This Court admitted the appeal and stayed the said order of the Trial Court on 5.9.2001. This Court has not stayed further proceedings of the suit, nor did it call for the records. For the first time, records have been called for by me on 18.9.2003 when the matter was taken up for hearing. Perusal of the order sheet maintained by the Trial Court shows that the matter was adjourned from time to time, awaiting the orders of this Court. In the process, two years has been lost, without even framing the issues. It is not understandable as to why the Trial Court should adjourn the matter awaiting the further order from this Court when further proceedings in the suit has not been stayed.
41. In the result, I pass the following order:
i) Appeal allowed. The order of the Trial Court impugned in this appeal is set aside.
ii) The Trial Court is directed to dispose off the suit in accordance with law within six months from the date of receipt of copy of this order, without being influenced by any of the observations made in the course of this order.
in) The Registry is directed to return the Trial Court records forthwith.
iv) No costs.
