JUDGMENT
D.K. Kapur, J.
1. This is an application for interim injunction and other interim reliefs in relation to a suit brought for perpetual injunction. The plaintiff has relied on two registered Trade Marks which are Popular Crown and Super Crown being Nos. 315915 and 315916, respectively. These trade marks are in relation to Overlock Machines and Chain Stitching Machines and parts. There are also some other marks pending for registration according to the plaint. According to the claim of the plaintiff, the defendants have started the using same trade marks in relation to the same type of machines, i.e., Overlock Machines and Chain Stitching Machines and there parts. On this basis, an interim injunction is claimed to re strain the defendants from using the same marks on the same goods. A reply has been filed to the injunction application which is in the form of affidavit of Shri Suresh Kumar. It is claimed that the trade marks on which the plaintiff has relied are being sought to be removed and certain documents have been filed to show this. I have examined the same. It appears that some rectification proceedings are pending in relation to these very trade marks and those oppositions have been moved by the defendants in this very suit. On this basis, an application for stay under section 111 of the Trade and Merchandise Marks Act has also been moved by the defendants. That application has not been registered and is on record. It is not properly stamped nor supported by an affidavit. It is directed to be returned for being properly stamped and for filing an affidavit along with same. It will be taken up in due course.
2. Assuming that rectification applications are pendings, then section 111 of the Trade and Merchandise Marks Act makes it mandatory for the Court to stay such suits. However, sub-section (5) of Section 111 of the Act permits the court to deal with interlocutory matters including applications for injunction, to get an account and so on. Hence, even if the trade marks on which the plaintiff sues are under challenge, it does not preclude the Court from giving relief in the intervening period. So, I proceed to deal with the application.
3. According to the plaintiffs, they have been using the trade mark 'CROWN' since 1967' whereas the defendants claim to have started using the name since 1971. Assuming that there is a concurrent innocent user during the period the trade marks were not registered and assuming that the trade marks are being used and were being used in different portions of the country, the possibility of deception is so great that some interim relief has to be given. Personally, I would have liked to have given an injunction as it is preferable that the goods should not be manufactured by two different manufacturers applying the same trade mark on the same type of goods. The possible loss or gain by one party or the other party is so difficult to compute in such a case that the only proper relief is to grant an injunction. However, as the rectification applications are pending, there is always the possibility that the registered trade marks may be de-registered and for this possibility the Court has to make some allowance while granting interim relief. The grant of a total injunction to restrain the defendants from manufacturing the machines in question using the same trade marks would make it most difficult for the defendants to carry on business in future therefore, I refrain from passing an order granting an injunction.
4. Before considering the matter of other relief, I note one objection of the defendants which relates to the jurisdiction of this Court. It is claimed that the plaint is inadequately stamped. This contention is based on the fact that the amount claimed on accounts is Rs. 1,00,000/-, but for court fee the stamp is paid on Rs. 1,000/-. Unfortunately, the law permits a party to put court fee on an assumed value in such cases. When the eventual decree is given, i.e., after the accounts have been taken, then the court-fee has to be fixed on the accounts actually taken. Prima facie there seems to be nothing wrong with the manner in which the value for court-fee and the value for jurisdiction has been computed in the plaint. But, as I am not deciding the validity of the plaint at this stage, the defendants may raise further contentions on this matter when the suit is taken up on the merits, prima facie the plaint does not appear to be one which has to be returned under Order 7 Rule 11 of the Code of Civil Procedure at this stage. If it is found that the plaint is inadequately stamped or otherwise requires amendment, the Court will pass appropriate orders at the right time. Having come to the conclusion that the plaint has to be proceeded with and the application has to be decided and having also ascertained that this is not a fit case for grant of an injunction because of the pendency of the rectification proceedings relating to the trade marks relied upon in suit, I think that the only relief that can be granted is maintaining of accounts and the filing of statements regarding the same. Learned counsel for the plaintiff stresses that some security should be ordered. Counsel for the defendants says that the sales are very small. The counsel for the plaintiff states that merely furnishing an inadequate account, the defendants will escape scot-free and also infringe the trade marks which really amounts to giving a licence to the defendants. I am not sure of the Court's power to grant an order directing the defendant to furnish security, but the counsel for the plaintiff relies on Order 39, Rules I and 2 of the Code, and in view of the fact that an injunction has been refused because of the pendency of the rectification applications. I think that least that the court can order is that the defendants should furnish some security at least for costs etc. I would therefore, direct the defendants to furnish a security in sum of Rs. 10,000/-. Failing the furnishing of such security, the question of grant of injunction will be re-considered. To enable the security to be furnished, the case will be listed in any case on 28th September, 1981, so the security may also be furnished by that date to the satisfaction of the Registrar of this Court. The accounts to be furnished every two months regarding sales. This application is disposed of.