JUDGMENT - S.S. NIJJAR, J.:---Leave under Rules 147 and 148 of the High Court of Judicature at Bombay (O.S.) Rules, 1980 is granted to the plaintiffs to take out the Notice of Motion in terms of the draft Notice of Motion handed in. Notice of Motion made returnable forthwith. Defendants have been served and affidavits in reply and rejoinder have been filed. By consent of the parties, the Notice of Motion is being disposed of finally at this stage.

2. By this suit, the plaintiffs are seeking an order restraining the defendants from manufacturing, selling and/or trading their pharmaceutical products bearing the trade marks BROSMIN, ACTIZYME, ENERPRO, PRESTIGESIC and/or PRESTIFEN or any other mark identical and/or deceptively similar thereto as, according to the plaintiffs, the defendants are not entitled to use the same.

3. Plaintiff No. 1, defendant Nos. 2, 3 and 4 are members of the same family. They are partners in the family 'partnership firms being plaintiff No. 2 and defendant No. 1. Defendant No. 2 is the brother of the first plaintiff. Defendant No. 3 is the sister-in-law of the first plaintiff and defendant No. 4 is the niece of the first plaintiff. They are members of a family known as Dadhia family. This family owns several firms, companies, properties and plaintiff No. 1 along with his father and his four brothers including defendant No. 2 were carrying on business as a joint family known as "Dadhia group". The business of the Dadhia family is spread over various cities in India, including Mumbai.

4. In the year 1981 when the entire business of the family was being jointly conducted, defendant No. 1 commenced the use of trade mark BROSMIN. At that time, plaintiff No. 1 was one of the partners of defendant No. 1. Since the year 1981 the mark BROSMIN has been in continuous use on an extensive scale. Defendant No. 1 had made an application for registration of the trade mark which was subsequently abandoned. It was decided by the Dadhia family that the products manufactured by defendant No. 1 shall be marketed by a Company viz. Synthiko Formulations Pvt. Ltd., hereinafter referred to as "the Marketing Company". It is the common case that BROSMIN by continuous use on an extensive scale has acquired enviable reputation and goodwill in the market. Differences and disputes arose amongst the members of the Dadhia family. In the year 1995 the dispute came to be resolved at the intervention of the father of plaintiff No. 1 and defendant No. 2. On 29th May, 1995 an agreement was arrived at between all the male members of the Dadhia family including plaintiff No. 1 and defendant No. 2. 'This agreement' shall hereinafter be referred to as "the family arrangement." By this family arrangement, various businesses and properties of the Dadhia family have been separated. By Clause 1 of the family arrangement it is provided that M/s. Syrup Thio-kof Mfg. Com. (India), Bombay is a manufacturing concern of pharmaceutical formulations and products. All the products are marketed by the marketing Company. Both these Companies were looked after by the plaintiff. It provides that whatever patent or proprietory medicines, registered or not registered, under the Trade Mark Act and marketed by the marketing Company, those all products belonged to the plaintiff. It further stipulates that with effect from 1-4-1994 the plaintiff has full right and responsibility for profits and losses for manufacturing the product under the label of Syrup Thio-kof Mfg. Com. (India). This clause also provides that the aforesaid Company is not provided or given to any single partner of the firm. Thus all the trade marks have been given to plaintiff No. 1. The entity of the firm continues to hold the assets of the said firm. The partnership continues. Clause 2 of the agreement pertains to defendant No. 1. This clause provides that the products manufactured by defendant No. 1 and marketed by the marketing Company belonged to the plaintiff. It also provides that from 1-4

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