PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF PUNJAB DATE OF JUDGMENT28/11/1995 BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) MUKHERJEE M.K. (J) CITATION: 1996 SCC (1) 458 JT 1995 (8) 434 1995 SCALE (6)653 ACT: HEADNOTE: JUDGMENT:

J U D G M E N T S.B. <NAME> J.

Appellant, <NAME> has brought in challenge his conviction and sentence as imposed upon him by <ORG> at Chandigarh in Criminal Appeal No.637-DB of 1981. While allowing his appeal against conviction under Section 302 Indian Penal Code (in short ` IPC ') <ORG> has convicted him for the lesser offence under Section 304 Part I, IPC and sentenced him to undergo rigorous imprisonment for 10 years. The appellant's grievance is that he is not liable to be convicted even under the said provision.

In order to appreciate the grievance of the appellant a few relevant facts leading to this appeal deserve to be noted at the outset.

BACKGROUND FACTS :

The appellant who was accused no.1 along with two other accused <NAME> and <NAME> were charged with offences under Sections 302 , 307 , 325 , 324 , 323 read with Section 34 of the  on the allegation that on 11th January 1981 at about 6.00 p.m. in the area of village Nizamwala, in furtherance of their common intention which was to commit the murder of one lady Smt. <NAME>, the appellant did commit murder of the aforesaid Mst. <NAME> by intentionally causing her death whereas the other two accused committed offences under Section 302 read with Section 34 of the . Accused <NAME> was also charged with an offence under Section 307  for having fired a gun shot at one <NAME> with such intention and under such circumstances that if by that act he had caused the death of <NAME> he would have been guilty of murder while the appellant was charged with an offence under Section 307 read with Section 34 . It was also alleged that at the same time and place in furtherance of their common intention accused <NAME> Voluntarily caused hurt to <NAME> by means of a `gandasa', which is an instrument of cutting, and thereby committed an offence punishable under Section 324  whereas appellant and <NAME> accused were alleged to have committed offences punishable under Section 324 read with Section 34 of the . They were similarly charged for an offence for having caused hurt to one <NAME> by means of a `gandasa', which is an instrument of cutting. Appellant was also charged along with other co-accused for having committed an offence under Section 325 read with Section 34 of the  for having voluntarily caused grievous hurt to one <NAME>. Appellant was lastly charged with an offence under Section 27 of the Arms Act on the allegation that on the same date, time and place he had in his possession a single barreled 12 bore gun with intent to use the same for an unlawful purpose, that is, to commit the murder of Mst. <NAME> and that he actually used it for the above-said purpose thereby committing an offence under Section 325 of the .

The prosecution story briefly is to the effect that accused <NAME> is the sister's son of <NAME> accused and the appellant who belongs to village Baghewala, is their partyman. That prosecution witnesses, <NAME> and <NAME>, are the real brothers and Mst. <NAME> deceased was the wife of <NAME> and <NAME> is the nephew of <NAME>, <NAME> is the cousin of <NAME> and <NAME> is the nephew of <NAME>. That PW <NAME> was to celebrate Lohri festival in connection with the birth of his grand-child. He went to <NAME> at village Akku Masteke on 10th January 1981 to request him (<NAME>) to join the celebration of Lohri festival at his house. On 11th January 1981 at about 9.00 a.m. <NAME> came to the house of <NAME> and remained there upto 6.00 p.m. in connection with the distribution of sweets on the occasion of the birth of his (<NAME>'s) grand- child. At about 6.00 p.m. <NAME>, his wife Mst. <NAME>, his brother <NAME> came out of the house along with <NAME> to see the letter off. They were standing in front of the gate of his (<NAME>'s) house. At that time electric light which was fitted at his house, was illuminating in which a human being could be identified. <NAME> was going to connect his tractor with his trolley. Meanwhile, <NAME> accused armed with his D.B.B.L. gun, <NAME> accused armed with a single barrelled gun and <NAME> accused armed with `grandasa' came to the house of <NAME> and <NAME> raising `lalkaras'. <NAME> accused raised a `lalkara' that he and his companion co-accused were going to teach <NAME> and others a lesson for parking the tractor trolley in the lane. <NAME> accused opened the attack by firing from his D.B.B.L. gun towards <NAME>. However, the fire missed the target as he (<NAME>) had knelt down to save himself and the fire passed over his head. Thereafter appellant fired from his single barrelled gun and the shot hit Mst. <NAME> deceased near he pelvic region. On receipt of this injury, she fell down on the ground. Thereafter <NAME> accused dealt a `gandasa' blow on the head of <NAME> from its sharp side. Meanwhile <NAME> accused dealt blow with the butt of his gun on the left hand of <NAME> and another blow from the said butt on his right ear. Then <NAME> accused dealt a `gandasa' blow on the head of <NAME> from its reverse side. Thereupon <NAME>, <NAME> and <NAME> raised `raula' and on this, the accused decamped with their weapons. Before that, <NAME> and <NAME> also caused injuries on the person of appellant in their self- defence. Thereafter the PWs arranged a car in which <NAME> was placed. <NAME> and <NAME> accompanied her to Civil Hospital, Forezepore, at a distance of 14/15 kilometers. The car left village Nizamwala at about 6.45 p.m. but <NAME> died on the way at a distance of 6/7 miles near village Sodhiwala on their way to the Hospital.

On receipt of telephonic message, Inspector <NAME> of <ORG> Mallanwala went to <ORG>, Ferozepore, and recorded the statement of <NAME>, which formed the basis of the First Information Report. The inspector held inquest and sent the dead body of Smt. <NAME> to the mortuary for autopsy. Thereafter, he went to the spot, lifted blood-stained earth and recovered one empty catridge case from there. The accused were arrested on 17th January 1981 and their weapons were taken into possession.

After investigation the appellant along with his co- accused were chargesheeted and ultimately their case was committed to the court of Sessions for trial. The learned Trial Judge after recording evidence and hearing the rival versions took the view that appellant was guilty of an offence under Section 302 of the  for killing Smt. <NAME> and ordered him to undergo imprisonment for life and to pay a fine of Rs.3,000/- or in default to further undergo rigorous imprisonment for one and a half years, while <NAME> and <NAME> accused were sentenced under Section 302 read with Section 34 of  and were directed to undergo imprisonment for life and to pay a fine of Rs.1,000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months each. <NAME> accused was sentenced under Section 307  and was directed to undergo rigorous imprisonment for one and a half years and to pay a fine of Rs.300/- and in default of payment of fine to further undergo rigorous imprisonment for two months while the appellant and another accused <NAME> were sentenced under Section 307 read with Section 34  and were directed to undergo rigorous imprisonment for six months each and to pay a fine of Rs.100/- each and in default of payment of fine to further undergo rigorous imprisonment for one month each. Appellant was also sentenced under Sections 324 and 325 read with Section 34 for the injuries caused to the concerned PWs as mentioned in the charge. He was sentenced to undergo rigorous imprisonment for six months under Section 27 of the Arms Act.

The aforesaid decision of <ORG> resulted in criminal appeal moved by the appellant and the other two accused <NAME> and <NAME> in <ORG> at Chandigarh. <ORG> of <ORG> after hearing the contesting parties came to the conclusion that the co-accused <NAME> and <NAME> deserved to be acquitted of the offences with which they were charged and the appeal qua them was fully allowed while so far as the appellant was concerned, he was acquitted of offences under Section 302 , Section 307 read with Section 34 , Sections 324 and 325 read with Section 34 I.P.C. However, he was held guilty of an offence under Section 304 Part I, IPC . He was sentenced as aforesaid. His conviction and sentence under Section 27 of the Arms Act were also maintained. That is how the appellant is before us in the present appeal.

Learned advocate appearing for the appellant contended that when <ORG> came to the conclusion that the appellant had a right of private defence of body having received number of injuries in the incident, <ORG> instead of carrying this conclusion to its logical end, wrongly assumed that the appellant had exceeded his right of private defence of body as his reasonable apprehension could be of having caused simple hurt at the hands of the complainant party and, therefore, he had a right to give only grievous hurt but could not have caused any fatal injury by the use of his firearm. It was vehemently contended that looking to the evidence on record the aforesaid finding of <ORG> is not well sustained. Learned counsel for the respondent State of Punjab on the other hand tried to support the reasoning and the final conclusion to which <ORG> reached. In our view the decision of <ORG> to the effect that the appellant had exceeded the right of private defence cannot be supported on the evidence on record. It will be profitable to extract what <ORG> has said in this connection in the penultimate paragraph of its judgment at page 15 :

"...<NAME> appellant and <NAME> had sustained as many as 12 injuries and out of them 2 injuries on the person of <NAME> and one injury on the person of <NAME> were on the vital parts of their bodies. In such a situation, the accused party could legitimately harbour the apprehension that the complainant party would cause them simple hurt. But <NAME> appellant had over stepped the legal limits of the defence of person by firing a shot from his gun which hit Smt. <NAME> and proved fatal. The occurrence appears to have taken place all of a sudden and it was not a pre- planned attack. When <NAME> appellant apprehended simple hurt at the hands of the compainant party, he had the right to give a grievous hurt but he obviously exceeded the right of private defence of his person and caused one fire arm injury, which proved fatal. Consequently <NAME> is found guilty for an offence under section 304 Part I, Indian Penal Code ..."

Now it must be noted that according to <ORG> the appellant had a right of private defence as he had sustained number of injuries in the incident. So far as his injuries are concerned, Dr. <NAME>, PW.1 has described the injuries by stating as under :

"I conducted medico legal examination on the person of <NAME> accused and found the following injuries on his person:-

1. Incised wound of the size 5.5 cm x 1 cm bone deep at the right front pariental region 9.5 cm from the right eye-brow, obliquely placed and 8 cm from the right pinna. Blood clot was present.

X-ray was advised.

2. Swelling of the size 3.5 cm x 3.5 cm on the left side of the fore-head 1.5 cm above the left eye-brow. X-ray was advised.

3. Reddish swelling of the size 5 cm x 3.5 cm with overlying abrasion 2 cm x 0.5 cm, at the back and upper part of left fore-arm.

4. Swelling of the size 2.5 cm x 2.5 cm with overlying lacerated wound 0.75 cm x 0.25 cm back and middle of left middle finger of hand. X-ray was advised.

5. Swelling 1 cm x 1.5 cm at the tip of middle finger of left hand. X-ray was advised.

6. Abrasion 0.5 cm x 0.5 cm on medical aspect and middle of left index finger.

7. Reddish contusion 5.5 cm x 2 cm at the upper and lateral aspect of right upper arm. X-ray was advised.

8. Reddish contusion 5 cm x 3 cm on the front and middle of right upper arm.

9. Abrasion 3 cm x 2 cm on front of right elbow joint.

The patient was conscious. Pulse was 72 per minute. B.P. 130/70. Nature of the injuries. Injuries nos :

1,2,3,4,5 and 7 were kept under observation for X-ray. Injuries nos:

3,6,8 and 9 were declared simple. The probable duration of the injuries was within six hours. The weapon declared for injury no.1 was sharp edged. Rest all by blunt weapon. On receiving X-ray report No.10/60, dated 13.1.1981, injuries nos : 1,2,4,5, and 7 were declared simple."

Now it becomes at once clear that the appellant had received as many as nine injuries out of which first two injuries were on a very vital part, namely, on his head and injury no.1 was an incised wound which was caused by a sharp-edged weapon. Under these circumstances if the appellant fired one shot from his gun in his self-defense it could not be said that he had exceeded the right of private defence as the nature of assault by the complainant party which left him with the aforesaid injuries certainly could be said to have caused a reasonable apprehension in his mind that grievous hurt would otherwise be the consequence of such an assault. In this connection it will be profitable to look at Section 100 of the Indian Penal Code which reads as under :

"100. When the right of private defence of the body extends to causing death.-- The right of private defence of body extends, under the restrictions mentioned in the last preceding section, to the Voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely :- First:- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly:- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly.- An assault with the intention of committing rape;

Fourthly.- An assault with the intention of gratifying unnatural lust; Fifthly.- An assault with the intention of kidnapping or abducting; Sixthly.- An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."

It is not the case of the prosecution that any of the restrictions mentioned in Section 99 can be invoked by the prosecution against the appellant. Once that is so, clause `secondly' of Section 100 would squarely get attracted. It is difficult to appreciate the reasoning of <ORG> that the reasonable apprehension in the mind of the appellant who had received two injuries on his head and seven other injuries on his body would be the apprehension that only simple hurt would be caused to him and not grievous hurt. It is true that the first injury caused on his head had fortunately not resulted into a fracture but when it was caused with a sharp cutting instrument on the vital part of his body, namely, right side of head, it cannot be gainsaid that at least a reasonable apprehension would arise in his mind at the spur of the moment that if he does not retaliate by using his weapon, namely, the gun with which he was armed he would certainly suffer at least a grievous hurt as a consequence of the assault by the c party. Under these circumstances the right of private defence of body available to the appellant would extend to even causing death. It is of course true that his, gun shot unfortunately hit an innocent person like Smt. <NAME> who was present on the scene of occurrence but as at the very same time and place the appellant had suffered an assault at the hands of the assailants comprising of the complainant party, right of private defence of body which would extend to even causing death of the assailant would arise in favour of the appellant on the facts of the present case and in exercise of that right if death is caused not of the assailant but of any other person it cannot be said that the right of private defence extending up to causing death of the assailant would not be available to the accused qua even an innocent party which got fatally hurt on account of the exercise of such a right of private defence which ensured for the appellant under Section 100 clause secondly of the IPC . It is obvious that if an accused with an intention to kill his victim fires a shot at him which misses the target and hits any other innocent person fatally he would remain guilty of an offence of murder but if the accused had no such intention and was protected by right of private defence under the situation and circumstances in which it could extend to even causing death of assailant as laid down by Section 100 and if in exercise of that right of private defence the blow fatally falls on an innocent person the action would still remain protected under Section 100 of the . In this connection we may refer to Section 301 , IPC which reads as under :

"301. Culpable homicide by causing death of person other than person whose death was intended.- If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause."

For applicability of that Section the act must amount to culpable homicide in the first place. If the act is not culpable at all, then even if it results into homicide of an innocent person, in view of Section 100  as in the present case, Section 301 will have no operation.

While judging the nature of apprehension which an accused can reasonably entertain in such circumstances requiring him to act on the spur of moment when he finds himself assaulted, by number of persons, it is difficult to judge the action of the accused from the cool atmosphere of the court room. Such situations have to be judged in the `light of what happens on the spur of the moment on spot and keeping in view the normal course of human conduct as to how a person would react under such circumstances in a sudden manner with an instinct of self-preservation. Such situation have to be judged from the subjective point of view of the accused concerned who is confronted with such a situation on spot and cannot be subjected to any microscopic and pedantic scrutiny. In this connection it is profitable to refer to two decisions of this Court. In the case of <CITATION> (1980 Supp. SCC 215), a Division Bench of this Court speaking through <NAME>, J. made the following pertinent observations :

"...the onus which rests on an accused person under Section 105 , Evidence Act , to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt. It is further well established that a person faced with imminent peril of life and limb of himself or another, is not expected to weigh in `golden scales' the precise force needed to repel the danger. Even if he in the heat of the moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it..."

In the case of <CITATION> . (1973 (1) SCC

347), this Court was concerned with a situation where the accused had received a blow on head by a `lathi' and in self-defence he had used his spear in retaliation. While holding that the accused was entitled to the right of private defence extending to even causing death, in such a case, he was acquitted of the offence under Section 302 . In this connection <NAME>, J., speaking for this Court in paragraph 5 of the Report has made these pertinent observations :

"In our opinion, <ORG> does seem to have erred in law in convicting the appellant on the ground that he had exceeded the right of private defence. What <ORG> really seems to have missed is the provision of law embodied in Section 102 , I.P.C . According to that section the right of private defence of the body commences as soon as a reasonable apprehension of dager to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant danger. This right rests on the general principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in self- defence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right. The right to punish for the commission of offences vests in the <ORG> (which has a duty to maintain law and order) and not in private individuals. . ............. the approach of <ORG> that merely because the complainat's party had used lathis, the appellant was not justified in using his spear is no less misconceived and insupportable, During the course of a marpeet, like the present, the use of a lathi on the head may very well give rise to a reasonable apprehensions that death or grievous hurt would result from an injury caused thereby. It cannot be laid down as a general rule that the use of a lathi as distinguished from the use of a spear must always be held to result only in milder injury. Much depends on the nature of the lathi, the part of the body aimed at and the force used in giving the blow. Indeed, even a spear is capable of being so used as to cause a very minor injury. <ORG> seems in this connection to have overlooked the provision contained in section 100 , I.P.C . We do not have any evidence about the size or the nature of the lathi. The blow, it is known, was aimed at a vulnerable part like the head. A blow by a lathi on the head may prove instantaneously fatal and cases are not unknown in which such a blow by a lathi has actually proved instantaneously fatal. If, therefore, a blow with a lathi is aimed at a vulnerable part like the head we do not think it can be laid down as a sound proposition of law that in such cases the victim is not justified in using his spear in defending himself. In such moments of excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing grave aggression to cooly weigh, as if in golden scales, and clamly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression. No doubt, <ORG> does seem to be aware of this aspect because the other accused persons were given the benefit of this rule. But while dealing with the appellant's case curiously enough <ORG> has denied him the right of private defence on the sole ground that he had given a dangerous blow with considerable force with a spear on the chest of the deceased though he himself had only received a superficial lathi blow on his head. This view of <ORG> is not only unrealistic and unpractical but also contrary to law and indeed even in conflict with its own observation that in such case the matter cannot be weighed in scales of gold."

The facts of the present case are almost parallel to the facts of the aforesaid case. Consequently it must be held that the appellant had a right of private defence of body which extended to even causing death and in exercise of that right if he fired one gun shot which unfortunately killed an innocent person that is, Smt. <NAME>, it cannot be said that he was guilty of an offence even under Section 304 Part of the  on the ground that he had exceeded his right of private defence. Consequently the conviction of the appellant under Section 304 part I, IPC as pendered by <ORG> is quashod and set aside. <ORG> has already acquitted the appellant of charges under Sections 307 , 324 and 325 of the . So far as his conviction under Section 27 of the Arms Act is concerned even that would not survive as it could not be said that he has used his gun of any unlawful purpose, that is to commit culpable homicide of Mst. <NAME> not amounting to murder. The appeal is accordingly allowed. Accused is no bail. His bail bound shall stand discharged.


PETITIONER: POWER CONTROL APPLIANCES Vs. RESPONDENT: SUMEET MACHINES PVT. LTD DATE OF JUDGMENT08/02/1994 BENCH: <NAME>, S. (J) BENCH: <NAME>, S. (J) VENKATACHALLIAH, M.N.(CJ) CITATION: 1994 SCR (1) 708 1994 SCC (2) 448 JT 1994 (2) 70 1994 SCALE (1)446 ACT: HEADNOTE: JUDGMENT:

The Judgment of the Court was delivered by <NAME>, J.- All these appeals can be dealt with under a common judgment. The Civil Appeal Nos. 2551-52 of 1993 are by the first plaintiff while Civil Appeal No. 2553 of 1993 by the second plaintiff.

2.The plaintiffs filed three suits on the file of <ORG> (i) C.S. No. 343 of 1992 complaining of infringement of the copyright of the first plaintiff (<ORG>);

(ii)C.S. No. 431 of 1992 alleging the violation of the registered trade mark 'Sumeet' No. 263836 in Part-A in Class 7 for machines (electric) for kitchen use;

(iii)C.S. No. 432 of 1992 claiming the design registration in the 'Whipper Blade' of the power operated mixies.

3.Pending these suits, four application Nos. 226, 227, 271 and 272 of 1992 were taken out, two in <ORG> of 1992 and one each in C.S. Nos. 431 and 432 of 1992 respectively.

4.The facts are common to all the suits and the applications. In C.S. No. 343 of1992 in the Application Nos. 226 & 227 of 1992, the plaintiffs prayed for aninterim injunction to restrain the respondents (defendants) from using, distributing, printing or causing to be printed the work as contained in Document Nos. (1) receipt and instruction manual, (2) guarantee card and (3) outer carton and the work as found in Document Nos. 4, 5 and 6. In C.S. No. 431 of 1992 in Application No. 271 of 1992 an interim injunction was sought to restrain the respondents from using the registered trade mark. In C.S. No. 432 of 1992 in Application No. 272 of 1992 the injunction was sought to restrain the respondents from using the design registration in manufacturing the mixies.

5.Admittedly, Mrs <NAME> is the sole proprietrix of <ORG> <ORG>. She started manufacturing power operated kitchen mixies for domestic use since 1963. They are marketed since 1964 under the brand name of 'Sumeet'. The mixy was packed in a cardboard box and at the top the pictorial and photograph display of the appliance in different colours showing the different purposes for which the mixy could be used was shown. A booklet was enclosed bearing the title "Sumeet Domestic Mixer-Operating Instructions and Recipe Book". That consisted of 80 pages bound spirally in hard art paper cover. A guarantee card was also issued. All these were devised, conceived and made by the first plaintiff in 1982 with the assistance of artists, photographers, printers and executives employed by the first plaintiff for valuable considerations fully paid. As such the first plaintiff is the owner of copyright with respect of all the above items in terms of Section 17 of the Copyright Act, 1957. 'Sumeet' mixy came to be in great demand in India and abroad. The business expanded. To cope up with the demand, the first plaintiff had to float three more concerns for the manufacturing of the same appliances. The companies are:

(i) <ORG>

(iii)Mathur <ORG>

(iii)Power Control Appliances (<ORG>).

All these concerns except <ORG> buy electric motors for their mixies from the second plaintiff <ORG>. That is deemed to be public limited company. Mrs <NAME> is the Chairman and Director. She holds 59.25% shares.

6.The artistic manner in which the word 'Sumeet' is written was conceived and published by the first plaintiff. It was registered trade mark with effect from April 18, 1970. This trade mark was assigned to the second plaintiff on January 1, 1981. The second appellant is the owner of the copyright.

7.The first defendant was incorporated in 1984. It has been manufacturing and selling mainly washing machines and vacuum cleaners from September/October 1991. It has started manufacturing domestic mixies exactly similar to plaintiffs' mixer with identical specifications except for power rating. The package and the pictorial display are identical. Even the booklet is pagewise reproduction including an error with respect to Design No. 146781, a design number not belonging to the plaintiffs. The contents of the guarantee card are also identical. The first defendant is affixing in each of the appliances the registered trade mark 'Sumeet' belonging to the second plaintiff in the same artistic manner in which it is registered. On these allegations, it was urged that the first defendant had committed infringement of the exclusive copyright of the first plaintiff in the artistic material and trade literature displayed on the cardboard box. Similarly, the operating instructions and recipe book and the guarantee card issued by them.

8.With regard to the four components of the mixer, Mrs <NAME> had obtained registration of their design under Part-11 of the Designs Act, 191 1. Those components are:

(ii) Whipper blade,

(iii)Polycarbonate dome,

(iv) Stainless steel jar with rim.

9.Each one of them has a specific registration number. Though the statutory period of 15 years or the validity of the copyright had elapsed on May 23, 1992 concerning items

(i), (ii) and (iv), as regards whipper blade the validity of registration is up to April 5, 1994. Therefore, it is not open to anyone to infringe the same. Thus, the applications on the grounds came to be preferred.

10.The first defendant did not file the written statement. However, he filed his counter-affidavit. The stand taken by him is that he (<NAME>) is the eldest son of Mrs <NAME>. On his return from United States, the family business, mainly kitchen appliances and mixer machines under the trade name of '<ORG>' had picked up by the innovative ideas and dynamic marketing strategies evolved by him. The family of <NAME> included the plaintiffs, the first defendant and others. The family was selling <ORG> mixies since 1963. It is true that three other companies were floated. In fact, he was the Director of <ORG> until recently. Because of inter se disputes, he was obliged to leave the said company.

11.The first defendant company was incorporated in 1984 as <ORG> for the purpose of manufacture of market kitchen appliances under the trade name of '<ORG>' and other products such as washing machines. The said company itself was incorporated with the knowledge and approval of the plaintiffs-applicants. When <ORG> was sought to be registered before <ORG>, Maharashtra, a letter of no objection from the owners of the trade mark '<ORG>' had to be produced. The first defendant obtained letters both from the first and second plaintiffs on May 7, 1984. It was only on this the company came to be registered on September 5, 1984. As a matter of fact, Mrs <NAME> is a shareholder in first defendant, she having been allotted 5000 shares. Likewise, the father of first defendant also owns 5000 shares.

12.Since 1986, the first defendant has been manufacturing and marketing mixies under the trade name of '<ORG>'. This was done with the knowledge and consent of the plaintiffs openly and concurrently. Further, Mrs <NAME> and the father of first defendant have signed and given personal guarantees to <ORG> on behalf of the first defendant. The loans were secured on that basis. In short, the reply of the first defendant is that the copyright trade mark and the copyright design is that of the first defendant which was conceived as a family concern. The word '<ORG>' was given with the blessings and consent of <NAME> and <NAME>. Therefore, he has been an honest and concurrent user. In any event, the plaintiffs' applications were not entitled to the reliefs on the ground of acquiescence.

13.The learned Single Judge as seen from the report of decision in <CITATION> held that the copyright with respect to operative instructions and recipe book, guarantee card and the outer carton of the <ORG> Kitchen Mixies vested in <ORG> represented by the Sole Proprietrix Mrs <NAME>. Equally, the copyright in the Design Registration No. 148246 in relation to 'whipper blade' was also accepted as belonging to the plaintiff. The trade mark in the name of '<ORG>' with the particular artistic design is registered in the name of <ORG> Research and Holdings Limited was accepted as claimed by the plaintiffs. Notwithstanding, all these, the relief of injunction was not granted in view of acquiescence by the plaintiffs in the honest and concurrent user of the first defendant. Against this judgment, OSA Nos. 144-46 of 1992 came to be preferred.

14.The Division Bench by the impugned judgment dated February 26, 1993 held that the learned Single Judge was not wrong in holding that the plaintiffs have acquiesced in the use of the trade literature and the trade mark by the first defendant. The relief in equity of injunction, if granted, will affect the interest of not only <NAME> but also other members of the family who are shareholders of the first defendant's company. Accordingly the appeals were dismissed. It is under these circumstances, these civil appeals have been preferred; Civil Appeal No. 2551 of 1993 against Application Nos. 226 & 227 of 1992 in CS No. 343 of 1992, Civil Appeal No. 2552 of 1993 against Application No. 271 of 1992 in CS No. 432 of 1992 and Civil Appeal No. 2553 of 1993 against Application No. 272 of 1992 in CS No. 431 of 1992.

15.Mr <NAME>, learned counsel for the appellants submits that both the courts below having held in favour of the appellants herein that there is an infringement of the trade mark, the copyright and the design should not have dismissed the application for injunction solely on the ground of honest and concurrent user and on the plea of acquiescence. On the contrary the evidence in this case discloses that the first defendant was only marketing (but never manufacturing) from 1986. Therefore, merely because he was marketing, that cannot amount to honest and concurrent user. It was only in September-October 1991 he started infringing the trade mark, copyright and the design. Therefore, when the suit came to be filed immediately, no question of acquiescence would ever arise. It is only on 28th of October, 1991 the first defendant invited applications for distribution.

16.The conclusions of <ORG> lead to strange results. Notwithstanding the finding of the court that the appellants' copyrights, registered trade mark and registered design having been occupied totally consciously and deliberately without any alteration and thereby infringed by the defendant to deny injunction in equity cannot be supported. After all the plaintiff Mrs <NAME> as an individual has 3.3 per cent of the shareholding in the first defendant-company.

17.To hold that the first defendant was using the registered trade mark from 1984 is wrong when admittedly the first defendant-company came into existence only in 1984.

18.Under Sections 19 and 54 of the Copyright Act reproduction of the copyright itself is infringement unless there is specific assignment in writing by the proprietor. In this case, there is not even a plea that Mrs <NAME> assigned the copyright in the outer carton handbook and guarantee card. The concept of honest and concurrent user found in Section 12(3) of the 1958 Act for securing concurrent registration is totally irrelevant as defence in a suit for infringement and copyright arising out of a different Act, namely, 1957 Act. Therefore, there can be no honest and concurrent user of one's copyright by another. After 1958 Act, the plea of acquiescence is not available at all. Even assuming that the first defendant was manufacturing between June 1989 and October 1991 he cannot have the benefit of Section 30(1)(b) of the 1958 Act*. This Act creates offences for such infringement under Sections 78 and

29. Section 96 also speaks of implied warranty. These provisions were not found in the 1940 Act. <CITATION> .2 this Court had occasion to point out the distinction between the infringement and passing off. :On this basis it is submitted all that has to be proved by the plaintiff is that she is the registered owner of the trade mark. If there is an infringement, injunction must follow. Section 12(3) of the 1958 Act talks of special circumstances in relation to honest and concurrent user. In such a case the defences available are as laid down in Sections 30 , 34 and 35 of that Act. Such defences are not available in the instant case. In this case, factually there is no acquiescence.

19.In support of these submissions; learned counsel relies on <CITATION> and particularly the passage occurring at page 497 to show in what case the plea of acquiescence could ever be made. Equally, in <ORG> v. <ORG> it was held that the court is bound to grant an injunction if the legal right is established. In the case on hand it has been so established. In <ORG> v. <ORG> as to when the plea of acquiescence could be upheld, is stated. In Bostitch Trade Mark6 the plea of acquiescence has been dealt with. Judged in the light of these rulings, the finding relating acquiescence cannot at all be upheld.

20.Mr <NAME>, learned Senior Counsel for the respondent submits that it is a clear case in which there are various acts, collectively pointing out to implied consent to the use of plaintiff's trade mark. They establish, at least prima facie, the acquiescence on the part of the appellant. They would disentitle it to the interim relief of injunction. The acts are as under:

(1)The letter dated May 7, 1984 to <NAME> regarding the allocation of the name <NAME>.

(2)The encouragement of production of new electronic food preparation machine. (3)No objection whatsoever by the plaintiff or any other related companies or even by Mr or Mrs <NAME> to the manufacture and sale by this respondent till the issue of notice dated November 18, 1991.

There is also evidence in this case to show that the first respondent has been manufacturing mixing machines from July 1987. There is also a clear * The Trade and Merchandise Marks Act , 1958 + The Trade Marks Act , 1940 2 (1 969) 2 SCC 727 : (1970) 2 SCR 222, 224 3 (1963) 2 SCR 484: AIR 1963 SC 449 4 (1948) 55 RPC 329, 338 5 1954 RPC 23, 34 6 1963 RPC 183, 202 admission on the part of the plaintiff that the first respondent was manufacturing his products under the trade name of <ORG> at least since June 1989. This is evident from the following:

(i)Criminal complaint dated April 6, 1992 mentions the manufacture of washing machines, vacuum cleaners and industrial mixies from 1984 and the manufacture of kitchen machines from 1989-90.

(ii)The affidavit filed on behalf of the appellants mentions about the manufacture since June 1989. There is a similar admission in paragraph II of the plaint. The export of these domestic mixies as Sumeet 842 INT is done by the first respondent. All these point out to acquiescence which would be a good ground for denying the interim relief of injunction.

21.The appellant has disentitled itself from the grant of equitable relief of injunction by reason of unexplained delay and suppression of material facts. The balance of convenience is also overwhelmingly in favour of this respondent in view of the facts stated above that the first respondent has been manufacturing and marketing productions with the trade name of <ORG> since 1989.

22.It is not correct to contend that once the trade mark is infringed the plaintiff would be entitled to injunction. Section 30(b) is still applicable and it is open to this respondent to show that there had been an implied consent to the use of the trade mark. In support of this submission learned counsel places reliance on <CITATION> .7

23.As regards the principles in relation to the grant of interim injunction the law has been laid down in <NAME> v. <NAME>. Similar principles are stated in <ORG> v. <ORG>

24.In dealing with this case we would like to keep this in the back of our mind that we are concerned with an interim application for injunction in relation to the violation of copyright, trade mark and the design. <ORG> observed in paragraph 8 as follows:

"The learned Single Judge, while disposing of the applications, has in the impugned judgment, accepted the copyright with respect to operating instructions and recipe book, guarantee card and the outer carton of the <ORG> kitchen mixies in <ORG> represented by the Sole Proprietrix Mrs <NAME>, as well as the copyright in the Design Registration No. 148246 for 'whipper blade' for which there is validity till April 5, 1994. He has also accepted the plaintiffs' case that the trade mark in the name '<ORG>' with the particular artistic design is registered in the name of <ORG> Research and Holdings Limited. He has, however, declined to grant any injunction, for in his opinion the doctrine of acquiescence and honest and concurrent user will be attracted."

8 (1957) 2 MLJ 573 9 (1 975) 1 All ER 504, 511 : (1975) AC 396

25.If there is an infringement of the same whether the appellant would be entitled to interim injunction at this stage is the important question for determination. For such a determination, we refrain from going into the details relating to evidence as that will prejudice the parties in the suits. Section 30(1)(b) of the 1958 Act says: "30. Acts not constituting infringment.-(1) Notwithstanding anything contained in this Act, the following acts do not constitute an infringement of the right to the use of a registered trade mark---

(a * * *

(b)the use by a person of a trade mark in relation to goods connected in the course of trade with the proprietor or a registered user of the trade mark if, as to those goods or a bulk of which they form part, the registered proprietor or the registered user conforming to the permitted use has applied the trade mark and has not subsequently removed or obliterated it, or has at any time expressly or impliedly consented to the use of the trade mark."

Therefore, acquiescence is one of the defences still available to the first respondent. Of course, it is a different issue whether the plea of acquiescence has been made out in this case. That will be examined for a limited purpose after setting out the law on this aspect.

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 <NAME> v. <NAME> Sr. <NAME> 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. If the acquiescence in the infringement amounts to consent, it will be a complete defence as was laid down in <ORG> & Co. v. <NAME>". The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant as was laid down in <NAME> v. <NAME>.

27.The law of acquiescence is stated by <NAME>, <NAME> in Pro tor v. <NAME> as under:

"It is necessary that the person who alleges this lying by should have been acting in ignorance of the title of the other man, and that the other man should have known that ignorance and not mentioned his own title." In the same case <NAME>, <NAME> said:

10 (1860) 28 Beav 303 :54 ER 382 11 (1884)26ChD406 12 (1847) 2 De GM&G 614: 22 LJ KCH 404 13 (1887) 36 Ch D 740 "In order to make out such acquiescence it is necessary to establish that the plaintiff stood by and knowingly allowed the defendants to proceed and to expend money in ignorance of the fact that he had rights and means to assert such rights."

28. In Devidoss and Co.7 at pages 33 and 34 the law is stated thus:

"To support a plea of acquiescence in a trade mark case it must be shown that the plaintiff has stood by for a substantial period and thus encouraged the defendant to expend money in building up a business associated with the mark. In <NAME> v. <NAME> <NAME> observed:

'If the plaintiff really does stand by and allow a man to carry on business in the manner complained of to acquire a reputation and to expend money he cannot then after a long lapse of time, turn round and say that the business ought to be stopped."' In the same case, but on appeal Lord <NAME>, C.J. said' 5 at p. 43:

"Is the plaintiff disentitled to relief under that head by injunction because of acquiescence? Of course it is involved in the consideration of that that the plaintiff has a right against the defendant and that the defendant has done him a wrong and the question is whether the plaintiff has so acted as to disentitle him from asserting his right and from seeking redress from the wrong which has been done to him. Cases may occasionally lay down principles and so forth which are a guide to the court, but each case depends upon its own circumstances.

Dealing with the question of standing by in Codes v. Addis and Son16 at P. 142, Eve, <NAME> 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 <NAME> policy of going to sleep and not watching what their rivals and competitors in the same line of business were doing. I accept the evidence of any gentleman who comes into the box and gives his evidence in a way which satisfies me that he is speaking the truth when he says that he individually did not know of the existence of a particular element or a particular factor in the goods marketed by his opponents. 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 <ORG> and say : "Now stop them from doing it further, because a moment of time has arrived 14 (1896) 13 RPC 464 15 Rowland v. <NAME>, (1 897) 14 RPC 37, 43 16 (1923) 40 RPC 130, 142 when I have awakened to the fact that this is calculated to infringe my rights." Certainly not. He is bound, like everybody else who wishes to stop that which he says is an invasion of his rights, to adopt a position of aggression at once, and insist, as soon as the matter is brought to <ORG>, it ought to have come to his attention, to take steps to prevent its continuance; it would be an insufferable injustice were the <ORG> to allow a man to lie by while his competitors are building up an important industry and then to come forward, so soon as the importance of the industry has been brought home to his mind, and endeavour to take from them that of which they had legitimately made use; every day when they used it satisfying them more and more that there was no one who either could or would complain of their so doing. The position might be altogether altered had the user of the factor or the element in question been of a secretive or surreptitious nature;

but when a man is openly using, as part of his business, names and phrases, or other elements, which persons in the same trade would be entitled, if they took steps, to stop him from using, he gets in time a right to sue them which prevents those who could have stopped him at one time from asserting at a later stage their right to an injunction.' In <ORG> v. <ORG> acquiescence for four years was held to be sufficient to preclude the plaintiff from succeeding. In 1897 the plaintiffs in that case registered the word 'glacier' as a trade mark in respect of transparent paper as a substitute for stained glass. As the result of user the word had become identified with the plaintiffs' goods. In 1900 the defendants commenced to sell similar goods under the name 'glazine. In 1905 the plaintiffs commenced an action for infringement. The defendants denied that the use of the word 'glazine' was calculated to deceive and also pleaded acquiescence. A director of the plaintiff company admitted that he had known of the use of the word 'glazine' by the defendants for four years he would not say it was not five years. It was held that the plaintiffs failed on the merits and by reason of their delay in bringing the action.

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. A village may develop into a large town as the result of the building up of a business and most of the inhabitants may be dependent on the business. No hard and fast rule can be laid down for deciding when a person has, as the result of inaction, lost the right of stopping 17 (1960) 23 RPC 1 another using his mark. As pointed out in <NAME> v. <NAME> each case must depend on its own circumstances, but obviously a person cannot be allowed to stand by indefinitely without suffering the consequence."

29. This is the legal position. Again in Halsbury's Laws of England, Fourth Edn., Vol. 24 at paragraph 943 it is stated thus:

"943. Acquiescence.- An injunction may be refused on the ground of the plaintiff's acquiescence in the defendant's infringement of his right. The principles on which the court will refuse interlocutory or final relief on this ground are the same, but a stronger case is required to support a refusal to grant final relief at the hearing. [.Patching v. <NAME>; <NAME> v. <NAME>; <NAME> v. Wyatt2O; <NAME> v. <NAME> 21; <NAME> v. <NAME>; <NAME> v. <NAME> and <ORG>] The reason is that at the hearing of the cause it is the court's duty to decide upon the rights of the parties, and the dismissal of the action on the ground of acquiescence amounts to a decision that a right which once existed is absolutely and for ever lost: <NAME> v. Wyatt2O at 25; and see <NAME> v. <NAME> and <ORG> Co.24 per Lord Langdale MR.')

30.In <ORG> v. <ORG>, LD.4 at pp. 338-39 it was held thus: "Apart from this point the case of <NAME> v. <NAME>25 shows that the injunction in a passing-off case is an injunction sought in aid of a legal right, and that the <ORG> is bound to grant it if the legal right be established unless the delay be such that the Statute of Limitations would be a bar. That case apparently concerned some predecessors of the defendants. The delay was one of rather under two years and the relief sought was an injunction to restrain the use by the defendants of cards and wrappers calculated to induce the belief that his business was connected with the plaintiff. <ORG>, in the course of his judgment said this:

" Now, assuming, as I will, for the purpose "of my decision, that in the early part of 1875 the plaintiff knew of all the material facts" which have been brought before me today, he commenced his action in November 1876. "In my opinion that delay, and it is simply delay, is not sufficient to deprive the plaintiff of' his rights. The right asserted by the plaintiff in this action is a legal right. He is, in 18 (1853) Kay 1 : 69 ER 1 19 (1 854) 5 De GM&G 739: 43 ER 1057 20 (1863) 2 De GJ&Sm 18: 46 ER 281 21 (1865) 34 Beav 390: 55 ER 685 22 (1874) LR 18 Eq 444 23 (1 884) 50 LT 787 24 (1 842) 5 Beav 229, 233 : 49 ER 565 25 (1878) 9 Ch D 176: 47 LJ Ch 459 "effect, asserting that the defendants are liable to an action for deceit". It is not suggested in the defence that the delay here involves a question under or analogous to the period under the Statute. The defendants did suggest that there had been something more than mere delay on the part of the plaintiffs, and that the plaintiffs had lain by and allowed the goodwill which the plaintiffs now propose to acquire, but this point was not seriously pressed. It was suggested that Mr <NAME>, the plaintiffs' solicitor, knew from 1941 onwards what the defendants were doing, but it is impossible to impute to a busy solicitor a knowledge which he could only acquire by seeing advertisements in local or farming papers advertising the defendants' activities. No direct information was afforded to him; on the contrary it will be remembered that when in 1942 he made enquiries on behalf of his clients information was studiously withheld from him. I conclude therefore that there has been no acquiescence to disentitle the plaintiff to relief."' 31 In <ORG> v. <ORG> at pp. 32 and 33 it was held thus:

"I now pass to the second question, that of acquiescence, and I confess at once that upon this matter I have felt no little sympathy for the defendants, and have been not a little envious of the good fortune which has attended the plaintiffs, though no doubt they may justly attribute it to the astuteness of their advisers; but, as has already been said, the defendants have traded openly and (as the Judge found) honestly, beyond any question, in the ordinary course and substantially under this name '<ORG>' for a very long period of time, since early 1930's. During that time, they have built up (I doubt not) a valuable goodwill associated with that name. If the possibility that the mark 'Electrolux' was infringed is out of the way, and if I disregard for the moment (as I do) the point taken by Mr <NAME> that in any event for use of 'Electrolux' was a sufficient use for the purpose of Section 26(1) of 'Electnix' (seeing that the two marks were associated). I have no doubt that if the plaintiff had challenged in the courts the right of the defendants to use '<ORG>' before they have effect to their decision to apply the word 'Electrux' to their cheaper model in lieu of 'Electrolux', they would in all probability have failed, because the defendants' motion to strike the word 'Electrux' off the Register would have succeeded, but the fact is that when the battle was joined, 'Electrux' was no longer vulnerable on that account, unless the defendants can establish that the use was not bona fide, a matter to which I shall come presently. It is, however, said that by the defendants that the plaintiffs have deprived themselves of their legal right or, at least, of any right to the equitable remedy of injunction.

Upon this matter, a great deal of learning has been referred to, and we have also had our attention drawn to a number of cases. The latter include the well-known statement in <NAME> v. <NAME> by <NAME>, J. (as he then was) at p. 105. He said this: 'It has been said that the acquiescence which' will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would 'make it fraudulent for him to set up those rights'. Let me pause here to say that I do not understand that, by the word 'fraudulent', the learned Judge was thereby indicating conduct which would amount to a common law tort of deceit. 'What, then, are the elements or requisites necessary to constitute fraud of that description?' In the first place 'the plaintiff must have made a mistake as to his legal rights'. Secondly, the plaintiff must 'have expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of 'the legal right, must know of the existence of his own right which is inconsistent with 'the legal right, must know of the existence of his own right which is inconsistent with' the right claimed by the plaintiff. If he does not know of it he is in the same position 'as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge' of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know 'of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which' calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal 'right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right'. In reading that passage, it is perhaps necessary to note (because it makes it at first sight a little more difficult to follow) that the positions of plaintiff and defendant as they are usually met with are there transposed, and that one of the parties who is there spoken of as the plaintiff corresponds with the present case with the defendants, and vice versa."

32 <ORG> pharmacy v. <NAME> is case where <ORG> was quoted with approval. However, on the facts of that case it was held that the plea of acquiescence had not been made, out.

33.Now, we come to the principles in relation to the grant of interim injunction. The case in <NAME> v. <NAME> makes a reference to the case-law and holds at pages 574-75 as under:

" The principles which should govern the <ORG> in granting or withholding a temporary injunction in trade mark infringement actions are well-settled : See recent decision <ORG> v. <ORG> As a temporary injunction is merely of a provisional nature and does not conclude the rights of the parties in any way, the 26 (1880) 15 Ch D 96: 43 LT 95 27 (1951) 68 RPC 47 <ORG> will exercise its discretion in favour of the applicant only in strong cases. The plaintiff must make out a prima facie case in support of his application for the ad interim injunction and must satisfy the <ORG> that his legal right has been infringed and in all probability will succeed ultimately in the action. This does not mean, however, that the <ORG> should examine in detail the facts of the case and anticipate or prejudice the verdict which might be pronounced after the hearing of the suit or that the plaintiff should make out a case which would entitle him at all events to relief at the hearing. Colman v. <ORG>, <ORG>, <ORG> v. <ORG>, <ORG> v. <NAME>. In fact the <ORG> will not ordinarily grant an interlocutory injunction if a large amount of evidence is necessary to support the plaintiff s case. The proper course in such a case is to ask for the trial of the action. The injury must be actual or imminent. <ORG> v. <ORG> Where the defendant disputes the plaintiff's title to the mark or contends that the plaintiff is not entitled to relief by reason of the acquiescence or delay or other estoppel or of the defendant's concurrent rights, the <ORG> will be guided by the balance of inconvenience which may arise from granting or withholding the injunction as well as the justice of the cause after considering all the circumstances in the suit. In other words, where the plaintiff s title is disputed or the fact of infringement or misrepresentation amounting to a bar to the action or some other defence is plausibly alleged upon the interlocutory motion, the <ORG> in granting or refusing the interim injunction is guided principally by the balance of convenience that is by the relative amount of damage which seems likely to result if the injunction is granted and the plaintiff untimately fails or if it is refused and he ultimately succeeds; <ORG> v. <NAME> and Co.33, <NAME> v. <ORG> ... It is necessary that an application for interlocutory injunction should be made immediately after the plaintiff becomes aware of the infringement of the mark. Improper and unexplained delay is fatal to an application for interlocutory injunction. The interim injunction will not be granted if the plaintiff has delayed interfering until the defendant has built up a large trade in which he has notoriously used the mark. <ORG> v. <ORG>, <ORG> v. <ORG> 28 (1898) 15 RPC 198 29 (1936) 53 RPC 399 30 (1890) 7 RPC 183 31 (1906) 23 RPC 337 32 (1895) 14 RPC 933 33 (1 881) 45 LT 54 34 (1903) 20 RPC 801 35 (1 894) 12 RPC 17 <ORG>, <ORG> v. <NAME>, <ORG> v. <ORG>, <ORG> v. <ORG>"

34. In <ORG> it is held at page 511 as under:

"Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.

The factors which he took into consideration, and in my view properly, were that <ORG>'s sutures XLG were not yet on the market; so that had no business which would be brought to a stop by the injunction; no factories would be closed and no work people would be thrown out of work. They held a dominant position in the United Kingdom market of absorbable surgical sutures and adopted an aggressive sales policy."

35.Again in <CITATION> .40 at page 731 to which decision one of us (<NAME>, J., as he then was) was a party it was stated thus: (SCC pp. 731- 32, para 9) "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 object of the interlocutory injunction, it is stated: '... is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his 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 36 (1902) 19 RPC 574 37 (1909) 26 RPC 89 3 8 (1902) 19 RPC 422 39 (1908) 25 RPC 245 40 1990 Supp SCC 726: 1991 SCC (Cri) 145 ((<NAME>, J.) 465 compensated. The court must weigh one need against another and determine where the "balance of convenience" lies.' The interlocutory remedy is intended to preserve in status quo, the rights 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 be 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 somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted."

36.In this case we will briefly analyse the materials on record as they now exist to decide the plea of honest and concurrent user of acquiescence. The learned Single Judge in paragraph 18 of his judgment at p. 1271 observes:

"A careful perusal of the above referred documents in particular along with the other voluminous documents, clinch the fact that <NAME>, the mother of the deponents in the affidavits filed in support of the applications, as well as the counter- affidavit, got the trade mark '<ORG>' registered long back as early as 1964 and that by the very strenuous efforts, hard work, skill, exertion, devised so many designs and improved the appliances on par with the modem technology and along with other members of the family, viz., husband, sons and daughters were able to start different business concerns as specifically pleaded in the affidavit and reply affidavit and by entering into various agreements among themselves and by remaining as shareholders and Directors in the companies engaged in manufacturing the various domestic power-operated machines like mixies, washing machines and so on by using the trade name and marketed <ORG> mixies in various categories and numbers. It has to be seen that during the said sojourn, <NAME>, the present Managing Director of the first respondent was also the Director of the plaintiff's company previously and still continuing as shareholder and that during 1984, the first defendant company was incorporated as private limited company under the Companies Act and in adopting the name '<ORG>', his mother <NAME> as well as his father gave written consent to the authority constituted under the Companies Act and that the several number of documents produced on behalf of the applicant as well as the respondents, clearly demonstrate the fact that <NAME>'s family including her husband, daughter, two sons and the other family members were all directly concerned and involved in all of their sister concerns including the first respondent company and have been engaged in manufacturing the various types of <ORG> home appliances and power operation machines and being marketed through a common distributor, viz., <ORG> and Engineers, Madras and all of their accounts were being audited by one and the same auditors concerned and that even to provide the working capital to the first respondent company being run by <NAME> it appears that in the company of the first respondent, both the mother and the father stood guarantee for a sum of Rs 2,00,00,000 in <ORG>. All virtually go to show that each and everyone in the family of <NAME> having involved in almost all the companies incorporated in the Companies Act by entering into agreement or otherwise and having the directorship and shares in almost all the companies and deeply involved in manufacturing either the components, motors and other accessories for their companies' products under the registered trade name and mark, <ORG> and that accordingly, they are being marketed the same through the company (sic common) distributor."

37.In paragraphs 19 and 20 of the impugned judgment the learned Judge refers to the documents filed by the respondent. None of these documents throw any light as to the manufacture. It might be that the first respondent was marketing, having regard to the close relationship as mother and son between the plaintiff and the first defendant. This was why <ORG> remarked: "There is some evidence showing that the first defendant has been at least marketing domestic mixers allegedly manufactured by <ORG> since its incorporation. Whether it actually manufactured before September 1991, however, is not possible to answer without proper evidence as to the actual manufacturing of the kitchen mixers by the first defendant." (emphasis supplied)

38.So, as such there is no evidence of manufacture. As rightly contended by Mr <NAME>, learned counsel, marketing may not advance the case of the first defendant- respondent. We do not think, as is urged by Mr <NAME>, learned counsel, either the criminal complaint or the averment in the plaint would amount to implied consent, more so, when no oral evidence has been let in, the parties having chosen to proceed on affidavit and counter-affidavit.

39.In 1984 the first defendant-company came to be incorporated. This was for the purpose of diversifying the industrial activity of the family group for manufacturing other technical appliances like washing machines, vacuum cleaners etc. But there is nothing on record to show that the first defendant was manufacturing earlier than the alleged violation of trade mark, copyright and design, as stated in the plaint.

40.We find considerable difficulty in appreciating the conclusion of <ORG> which had failed to note that the proprietor of the trade mark is <ORG> Again, the complaint of infringement of trade mark is not against <NAME> but against <ORG> and <ORG>.

41.It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the first defendant-respondent has proclaimed himself as a rival of the plaintiffs and as joint owner it is impermissible in law. Even then. the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other.

42.The plea of quasi-partnership was never urged in the pleading. As regardscopyright there is no plea of assignment. <ORG> had failed to notethe plea of honest and concurrent user as stated in Section 12(3) of 1958 Act for securing the concurrent registration is not a valid defence for the infringement of copyright. For all these reasons we are unable to support the judgments of <ORG> under appeal. We reiterate that on the material on record as is available at present the denial of injunction, once the infringement of trade mark, copyright and design is established, cannot be supported. Pending suit, there will be an injunction in favour of the appellants (the plaintiffs). All the civil appeals will stand allowed. No cost.

43. We request <ORG> to try the suits with utmost expedition.

44. We make it clear that whatever we have observed herein will have absolutely no bearing in the trial of the suits which have to be decided independently on their respective merits.


<NAME>, J.

1. For the facts relevant to this appeal their Lordships refer to the judgment which was delivered in July last in <CITATION> (1932) 35 Bom. L.R. 312, P.C. The re-argument, therein foreshadowed, of the appeal No. 86 of 1930, has taken place, and their Lordships now proceed to consider whether all or any of the three sums in question in that appeal (viz., Rs. 27,000, Rs. 35,000 and Rs. 7,703-13-0) are or is recoverable.

2. The principal and most difficult points turn upon the true construction and effect of the Indian Limitation Act , 1908, because their Lordships are of opinion that, apart from any questions of limitation, the three sums in question are all recoverable by the liquidators.

3. This is obviously so as regards the Rs. 7,703-13-0. As regards the other two sums, it was contended by the appellants that these were not recoverable upon the ground that in each case the sum was paid as a deposit or earnest to secure the due fulfilment of a contract, and that since the company in each case made default and failed to carry out the contract, the executors were entitled to retain the moneys. Their Lordships are unable to accept this contention, which depends upon a true view of the construction of the respective contracts. Suffice it to say that, having heard the arguments adduced, aad having considered the relevant documents, their Lordships are of opinion that the sums of Rs. 27,000 and Rs. 35,000 were not, nor was either of them, paid as a deposit or earnest money. They were payments in advance or anticipatory payments, and nothing else.

4. Their Lordships now proceed to consider the questions of limitation, the solution of which depends, in their view, upon the true construction and effect of the Indian Limitation Act , 1908, alone. Decisions in relation to English statutes do not appear to be of assistance.

5. The material section of the Indian Act is Section 3 which runs thus :-

Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence.

Explanation.-A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer ; in the case of a pauper, when his application for leave to sue as a paupar is made ; and, in the case of a claim against a company which is being wound up by the <ORG>, when the claimant first sends in his claim to the official liquidator,

6. Unless the application which the liquidators made on March 26, 1928, was a "suit instituted" or an "application made," for which a period of limitation is prescribed by the first schedule, no question of limitation in regard thereto can arise.

7. There is no definition of suit in the Act, beyond the provision, contained in Section 2 , that unless there is anything repugnant in the subject or context, "suit" does not include an appeal or an application. The word "suit" ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint. The application of the liquidators would not be a suit within Section 3 , if that section stood alone, unaccompanied by the Explaination. An argument, however, was addressed to their Lordships, founded upon the Explanation, to this effect: That the Explanation shows by its concluding sentence that a claim against a company in compulsory liquidation (even though made by a proceeding not instituted by the presentation of a plaint) is considered to be a "suit instituted" within the se words in Section 3 , and that a claim similarly made by or on behalf of such a company must necessarily, or may similarly, be treated as a "suit instituted" within the section. Their Lordships are unable to accede to this contention. Even if such a claim against such a company could be held by virtue of the Explanation to be a "suit instituted" within Section 3 , there is nothing in the Explanation to justify a similar holding in regard to a claim by such a company. But their Lordships do not accept the view that a claim against such a company (not made by a proceeding instituted by the presentation of a plaint) is by virtue of the Explanation to be considered to be a "suit instituted" within the section. The Explanation is not concerned with the question of what is a suit, or is to be considered a suit, within Section 3 . It is addressed to quite a different subject matter. It assumes the existence of a suit which has been instituted by the presentation of a plaint, and is concerned only with the point of time at which that suit is for the purpose of Section 3 to be treated as being instituted. The ordinary rule is stated by the Explanation to be that the suit is instituted when the plaint is presented; but to this two exceptions are prescribed, viz., (1) in the case of a suit by a pauper, the time at which that suit is (for the purposes of Section 3 ) instituted, is to be taken as an earlier date, viz., the date when the application for leave to sue as a pauper was made ; and (2) in the case of a suit against a company which is being wound up by the <ORG>, the institution of the suit is (for the purposes of Section 3 ) advanced also to an earlier date, viz., the date when the claim was first sent in to the official liquidator. Their Lordships are unable to find in an Explanation, which on its face only deals with the point of time at which suits are instituted within the meaning of Section 3 , any sufficient justification for extending the meaning of the word 'suit' in that section.

8. The application by the liquidators cannot, therefore, be dismissed as being a "suit instituted" after the prescribed period of limitation.

9. The application of the liquidators must, therefore, be treated as an "application made" under Section 3 ; and the next enquiry must be whether any period of limitation is "prescribed therefor by the first schedule" to the Indian Limitation Act . It is common ground that the only Article in that schedule which could apply to such an application is Article 181: but a series of authorities commencing with <NAME> v. <NAME> (1880) I.L.R. 7 Bom. 213 has taken the view that Article 181 only relates to applications under the Code of Civil Procedure, in which case no period of limitation has been prescribed for the application. But even if Article 181 does apply to it, the period of limitation prescribed by that Article is three years from the time when the right to apply accrued, which time would be not earlier than the date of the winding up order, March 26, 1926. The application of the liquidators was made on March 26, 1928, well within the three years. The result is that from either point of view the application by the liquidators, if otherwise properly made under and within the provisions of Section 186 of the Indian Companies Act is not one which must be dismissed by reason of Section 3 of the Indian Limitation Act. It is either an application made within time, or it is an application made for which no period of limitation is prescribed. The case may be a casus omissus. If it be so, then it is for others than their Lordships to remedy the defect.

10. There is, however, another aspect of the case in which the last-mentioned Act plays a most important part, and that is in considering whether the three sums which the liquidators seek by their application to recover from the appellants were at the date of that application "money due" within the meaning of Section 186 . If they were not, then the section had no application and the <ORG> would have had no power to make the order which it made.

11. From this point of view it is necessary to treat the three items separately, for the purpose of seeing whether if on March 26, 1928, the liquidators acting under the powers conferred upon them by Section 179 (a) of the Indian Companies Act had in the name of the company instituted a suit against the testator's executors for the recovery of any of those items, that suit would of necessity have been dismissed by reason of the Indian Limitation Act .

12. As regards the Rs. 35,000, this sum, whether paid under a void agreement with the company, or paid without the company's knowledge or authority, was (subject to a point to be mentioned later), immediately after payment, recoverable by the company as money had, and received. In other words, it was repayable on September 13, 1922. The period within which a suit by the company to recover the amount would have to be instituted is, under Article 62 of the first schedule, three years. The debt was accordingly time-barred both before the date of the winding-up order March 26, 1926, and before March 26, 1928.

13. In regard to the item Rs. 27,000, the company could hare recovered this by a suit instituted before the expiry of the period of three years named in Article 51 in the first schedule, a period which in their Lordships' view began to run on July 1, 1923, when the second shipment of goods fell to be delivered under the relevant contract. This debt was accordingly not time-barred by suit at the date of the winding-up order but was so time-barred when the liquidators made their application under Section 186 .

14. In regard to the item Rs, 7,703-13-10, balance of account, a suit by the company to recover it would fall within Article 85 of the first schedule and would have to be dismissed if not instituted within three years of March 31, 1924, being the end of the last accounting year on which the last item admitted or proved was entered in the account. This item is in the same situation for the matter now under consideration as is the second item. The important feature for this purpose is the fact that all three items were statute-barred by suit when the liquidators made their application under Section 186 . If on March 26, 1928, the liquidators, instead of proceeding in their own name as applicants under Section 186 , had in pursuance of their powers under Section 179 (a) already referred to instituted a suit in the name of the company by the presentation of a plaint, the <ORG> must of necessity have dismissed that suit under the Indian Limitation Act .

15. Now, in considering the meaning and effect of Section 186 it is impossible to overlook the fact that it is verbatim identical with the corresponding section in the legislation of this country, a section which dates back some seventy years to 1862, and which has appeared in our company legislation ever since. It is, therefore, a section with an ancestral history. Three features of the section call for notice: (1) It is concerned only with moneys due from a contributory, other than money payable by virtue of a call in pursuance of the Act. A debtor who is not a contributory is untouched by it. Moneys due from him are recoverable only by suit in the company's name. (2) It is a section which creates a special procedure for obtaining payment of moneys ; it is not a section which purports to create a foundation upon which to base a claim for payment. It creates no new rights. (3) The power of the <ORG> to order payment is discretionary. It may refuse to act under the section, leaving the liquidator to sue in the name of the company, and it will readily take that course in any case in which it is made apparent that the respondent under this procedure, if continued, would be deprived of some defence or answer open to him in a suit for the same moneys.

16. The old Section 101 of the English Act of 1862 has ever since 1866 been judicially interpreted and administered in accordance with the views expressed in Stringer's Case (1869) 4 Ch. App. 475 viz., that the section is one which provides summary proceedings against debtor-contributories to avoid proceedings in different <ORG> and to permit a single proceeding in the winding-up <ORG>-but "in those summary proceedings every objection is just as open to the person sought to be charged as it would have been if a bill had been filed." (p. 484.)

17. In this country it is difficult to conceive a case in which, so far as limitation is concerned, the section should so operate as to deprive a man of a defence to a claim made by the liquidator which would have been effective against the same claim if brought against him by an action in the company's name.

18. Whether, in view of the particular terms of the Indian Limitation Act already referred to, such a case could happen in India depends upon the meaning to be attributed to the words in the section "any money due from him or from the estate of the person whom he represents to the company." And their Lordships are satisfied that the position in this respect is, in India, the same as in this country, for the reason that in view of the place and context in which these words are found, they must be confined in their Lordships' judgment to money due and recoverable in a suit by the company, and they do not include any moneys which at the date of the application under the section could not have been so recovered.

19. Their Lordships are glad to find that this view has already prevailed in India, In the case of <CITATION> (1022) I.L.R. 4 Lah. 109, it was held that a debt time-barred (and therefore unenforceable in a suit) could not be enforced by a summary order under Section 186 , on the ground that the section does not create new liabilities or confer new rights, but merely creates a summary procedure for enforcing existing liabilities. It is true that so far as can be gathered from the report it would seem probable that the debt there in question had become time-barred before the liquidation began, but the decision is not based upon that fact, but upon a view of the section coinciding with the views expressed long ago in <NAME>'s Case.

20. The learned Judges, in the present case, took the erroneous view that once the winding-up commenced there could be no further application of the rule of limitation in regard to any debt due to the company and not then already time-barred. Their Lordships know of no justification for this view. In this respect there is no analogy between the position of a debtor to, and a creditor of, a company in liquidation.

21. The learned Judges also considered that the Lahore case was in conflict with a decision in <ORG>, <CITATION> (1916) I.L.R. 38 All. 347. This, however, is a misconception. The last-mentioned case had no relation to Section 186 . It was a ease relating to money due on shares in the company which was in liquidation, the liability for which on a winding-up became a statutory liability under Section 156 of the Indian Companies Act, 1918.

22. In their Lordships' opinion the case of <CITATION> was rightly decided and accordingly there was no power in the Court under Section 186 to order payment to the liquidators of any of the three items in question.

23. The liquidators made a new submission upon the occasion of the reargument in regard to the sum of Rs. 35,000. They claimed that under Section 65 of the Indian Contract Act (IX of 1872) they only became entitled to recover the Rs. 35,000 when the agreement under which it was paid was discovered to be void, and that this discovery was not made until the litigation which culminated in the judgment of May 14, 1929, so that this right never became time-barred. Their Lordships cannot accede to this contention. In the absence of special circumstances (and none exist here) the time at which an agreement is discovered to be void within the meaning of Section 65 is the date of the agreement, viz., September 13, 1922 (see <CITATION> (1)

24. Their Lordships are of opinion that this appeal should be allowed and that the decree of May 14, 1929, should be set aside and that in lieu thereof a decree should be made dismissing the application of the liquidators with costs; and they will humbly advise His Majesty accordingly. The respondents must pay the appellants' costs of this appeal.