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TaxTMI 
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1990 (4) TMI 280
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.... appeals, we proceed to dispose of the main appeals themselves. We have heard Sri F.S. Nariman, learned Senior Counsel for the appellants and Sri U.N.R. Rao, learned Senior Counsel for the respondents. We have been taken through the orders of the learned trial-Judge and of the Division Bench in appeal. 3. Wander Ltd., first appellant, claiming to be registered proprietor of the Registered Trade-mark Cal-De-Ce entered into an agreement dated 28-3-1986 with Antox India (P) Ltd. (Antox), the respondent, under which Antox agreed to manufacture vitaminsed Calcium Gluconate Tablets under the said registered Trade-Mark Cal-De-Ce and sell the entire production to the Wander Ltd. It would appear that pursuant to and in implementation of these arrangements Antox applied for the requisite manufacturing-license from the Drug Controller under the Drugs and Cosmetics Act, 1940, in the course of the processing of which Wander Ltd. furnished before the Drug Controller an undertaking that Wander Ltd., would not authorize the use of its Trade-Mark Cal-De-Ce by any other company and further not to manufacture Cal-De-Ce with effect from 1st July, 1986, either by itself or under sole licenses from it....
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....cture. The point for consideration is whether there is a prima facie case on which Antox could be held entitled to restrain Wander Ltd. and Alfred Berg from manufacturing and marketing goods under the Trade name Cal-De-Ce and whether on considerations of balance of convenience and comparative hardship a temporary injunction should issue. The corollary is that even if the injunction sought by Antox is refused, that does not, ipso-facto, entitled Wander Ltd. and Alfred Berg to manufacture and market the goods if they are not otherwise entitled to do so under the relevant laws regulating the matter. 5. 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 injucntion, it is stated is to protect the plaintiff against injury by violation of his rights for which he could not adequa....
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....actured stock in bulk to the defendants Its user of the trade marks pursuant to the licence obtained, was nut the user of the registered user under Sections 48 and 49 of the Trade and Merchandise Marks Act, not was its manufacture carried out in pursuance of any loan licence taken out by the defendant under rule 69-A of the Drugs and Cosmetics Rules. The plaintiffs manufacture with the trade names, under licenses in the trade names and the consequent user of the trade names establish a prima facie case for passing off action and the balance of convenience, requiring and the status quo to be maintained, the plaintiff having had the benefit of the injunction from 23-9-1988 till 2-3-1989 when it was vacated and from 2-5-1989 when this Court granted the injunction, the plaintiff would be entitled to have the interim injunction as prayed for by them. Appellants-Defendants have come up in appeal here. 8. On a consideration of the matter, we are afraid, the Appellate Bench fell into error on own important propositions. The first is a misdirection in regard to the very scope and nature of the appeals before it and the limitations on the powers of the Appellate Court to substitute its ow....
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....er taking given by Wander Ltd. "was not registered user under Sections 48 and 49 of the Trade and Merchandise Marks Act nor was it a manufacture carried out in pursuance of a loan because......" In-passing-off action this would be relevant only in a negative way. Positively, the plaintiff must establish a prior user of his own prima facie. Antox's case appears silent on this requirement in the context of a specific finding of the single judge as to user by Wander Ltd. prior to June, 1986. Antox's user is admittedly after June, 1986. An infringement action is available where there is violation of specific property-right acquired under and recognised by the statute. In a passing-of action, however, the plaintiff's right is independent of such a statutory right to a trade mark and is against the conduct of the defendant which lends to or is intended or calculated to lead to deception. Passing-off is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an actio....
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....6 would prevail over the prima facie finding that Wander Ltd. was manufacturing Calcium Gluconate Tablets under the trade-mark Cal-De-Ce at its own factory in Bombay from August 1983 to June 1986. The Appellate Bench does not dislodge this finding nor does it recognise the crucial effect of prior use by the defendant on the plaintiff's case in a passing-off action. It appears to us that it was not an appropriate case where the appellate Bench could have interfered with the discretion exercised by the learned Single, Judge. 12. We, accordingly, allow these appeals, set aside order dated 19-1-1990 of the Division Bench in so far as it pertains to Civil Suit of 1220/ 1988 and restore the order dated 2-3-1989 made by the learned Single Judge on Applications 4941 and 4942 of 1988. Since we are examining the matter at an interlocutory stage, none of the observations contained in this order shall affect the final decision of the suit on the merits after evidence. 13. The order of the appellate Bench is common to the present suit as well as certain other proceedings between Antox on the one hand and certain other parties on the other. This judgment and the observations therein are confin....