VIRUMAL PRAVEEN KUMAR Vs. GOKAL CHAND HARI CHAND

JUDGEMENT

(1.) The plaintiff has filed the suit claiming to be the lawful proprietor of the trade mark bearing numerals '555' for buttons, safety pins, hooks, eyelets, fastners etc. and the said trade mark was registered under Application No. 555498 dated 30th July, 1991. It is also averred by the plaintiff that the defendant was the dealer of the plaintiff since 1991 and the suit was filed on the plaintiff coming to know that the defendant had also started marketing its product under the similar trade mark '555' and were attempting to pass off their inferior quality goods as of the plaintiff's. On the basis of the above averments while registering the suit on 15th September.1998, this Court in I.A. 7984/98 by an ex parte order had restrained the defendants, their servants, agents etc. from manufacturing, selling or offering for sale or otherwise dealing in buttons and safety pins under the trade mark '555'.

(2.) Thereafter on 23rd October, 1998 the present I.A. 9347/98 under Order 39, Rule 4, Civil Procedure Code was filed by the defendant for vacation of the interim order. The case made out by Mr. Ghiraya, learned Counsel for the defendant, of the defendant is that the statement made by the plaintiff that the plaintiff was a lawful proprietor of the trade mark bearing numeral '555' was a wrong statement as the plaintiff was not the proprietor of the registered trade mark '555' and had merely applied for the same. He has relied on judgment in case Metro Playing Card Company v. Wazir Chand Kapoor, reported as AIR 1970 Delhi 248, to contend that no right is conferred on an application for registration of a trade mark. The other plea made by the defendant is that that defendant uses the trade mark 'V.R.' device of SWAN in a flower with numerals '555' and the trade mark is used as a carton and which carton has not been placed in this Court. The main plea of the learned Counsel for the defendant is that the plaintiff is not the proprietor of the trade mark '555' and in fact is the pirator of the trade mark '555' which dispute is the subject-matter of Suit 2018 / 95 which suit was filed against the plaintiff by M/s. Needle Industries Limited. In support of this plea the plaintiff has relied upon the judgments reported as 1988 PTC 182 and 1989 PTC 98. It has been submitted by the defendant that the plaintiff has concealed a vital fact from this Court while obtaining an ex parte interim order that the Suit No. 2018/95 has been filed against the plaintiff, which concealment in itself is sufficient to warrant the vacation of the ex parte interim injunction.

(3.) In my view the plea of the defendant which is relevant and material is the plea of the concealment of material facts from this Court. In support of the defendant's averments that the pendency of Suit No. 2018/95 filed by M/s. Needle Industries against the plaintiff was kept back from this Court the defendant pleaded in para 7 of his application as under: