HARMOHARI SINGH Vs. GARBAX SINGH

JUDGEMENT

(1.) It is proposed to dispose of these IAs by this common order. IA No. 13249/2000 is filed by the plaintiff under Order XXXIX Rules 1 & 2 readwith Section 151Civil Procedure Code whereby the plaintiff has sought ad interim injunction. By order dated 21/12/2000 ex parte interim was granted to me plaintiff. On the other hand, IA No.1436/2001 is filed by the defendant under Order XXXIX Rule 4Civil Procedure Code seeking vacation of order dated 21/12/2000 passed in IA No. 13249/2000.

(2.) The plaintiff has instituted this suit for permanent injunction, passing off, infringement of copyright, rendition of accounts etc. against the defendant. The plaintiff and the defendant are real brothers who had been carrying on business of manufacturing of motor parts, tractor parts, engine parts, machinery parts for use in automobiles in partnership under the name and style of Guaranteed Parts Manufacturing Co. on the terms contained in the partnership deed dated 20/09/1984. It is mentioned in the plaint that during the course of the said business the trade mark GP was adopted on 1/04/1985 in respect of pipes etc. Its application for registration is pending. It is also mentioned that another supplementary partnership deed dated 1/04/1996 was executed between the parties. The plaint further alleges that by mutual consent the said partnership was dissolved by virtue of Deed of Dissolution dated 19/09/1997 by which the defendant had not been willing to continue as a partner and has shown his intention to retire from the partnership and had no objection in continuing the said business by the plaintiff. The plaintiff, thus, continued the business with the trade mark GP. It is further submitted that the packing material is also distinctive bearing the trade mark GP. The packing material used by the plaintiff is available at pages 10 and 11 of the list of documents filed along with the plaint. It is also the case of the plaintiff that the defendant has been purchasing the goods under the trade mark GP from the plaintiff during the period November, 1997 till 17/11/1999. In support of this plea, the photocopies of the bills are filed. The case of the plaintiff is that the defendant thereafter started using the trade mark GPI in relation, to pipes, oil seals, water cooling pipes, thermostat and M.C.batteries. The packing material used by the defendant is almost identical to that of the plaintiff and is at pages 12 and 13 of the documents filed by the plaintiff. The trade mark GPI is deceptively similar to the trade mark GP. Hence, the defendant is guilty of infringement of copyright and is also passing off their goods as the goods of the plaintiff. The goods used by the defendant are also same goods which are used in automobiles.

(3.) Thus the court granted an ex parte ad interim injunction vide order dated 2 1/12/2000 restraining the defendant from using the trade mark GPI in relation to the goods mentioned above. The defendant thereafter filed the written statement, reply to the injunction application and application under Order XXXIX, Rule 4Civil Procedure Code being IA No.1436/ 2001.