( 1 ) THE present notice of motion is taken out for interim reliefs in a suit for passing off. By prayer (a) of the motion it has been prayed that the defendant should be restrained by temporary order and injunction from manufacturing, selling, exhibiting for sale and advertising pharmaceutical and medicinal preparations under the trade mark CEFI or cefi-DT or any other trade mark deceptively similar to the plaintiffs trade mark CEFO, cefo-P or CEFO-DT so as to pass off the defendants pharmaceutical and medicinal preparation as if the same are pharmaceutical preparation of the plaintiff herein.

( 2 ) THE present suit is filed on a passing off action under Section 27 of the trade and Merchandise Marks Act, 1958. It is the case of the plaintiff that sometime in or about December, 1999 the plaintiff adopted a distinctive trade mark called CEFO for its use in relation to a medicinal and pharmaceutical preparation containing the drug "cefixime" to be marketed by the plaintiff. It is the case of the plaintiff that on 23-12-1999 the plaintiff applied for registration of the said mark CEFO under the provisions of the Trade and merchandise Marks Act, 1958 in class 5 and that the said application is pending before the trade Mark Authorities. It is the further case of the plaintiff that in or about January, 2000, the licensee of the plaintiff one M/s. Emil pharmaceutical Industries (P) Ltd. , made an application to the Joint Commissioner, (Konkan division), Food and Drug Administration, maharashtra for licence to manufacture"cefixime" dispersible tablets under the name cefo-DT and "cefixime" oral suspension under the name CEFO-P. Accordingly, on 14- 01-2000, the Joint Commissioner granted the necessary licence to the said Emil pharmaceutical Industries (P) Ltd. who is the licensee of the plaintiff. It is the further case of the plaintiff that since September, 2000 the licensee of the plaintiff is manufacturing the said goods and for the year 2000-2001 the sales figures of the plaintiff is Rs. 1,12,19,475. 00 and"for the year 2001-2002 the figure is rs. 1,24,77,571. 00 and for the period April, 2002-Sept. , 2002 the figure has been rs. 50,36,726. 00. It is also the case of the plaintiff that the plaintiff has spent on sale promotion expenses in the year 2000-2001 about Rs. 25 lacs and in the year 2001-2002 also in the range of few lacs of rupees. It is therefore the case of the plaintiff that the said mark CEFO-DT and CEFO-P has acquired reputation and is distinctive to the goods of the plaintiff and, therefore, the defendant should be restrained from using deceptively similar trade mark. In para 8 of the said plaint the plaintiff has also stated that in respect of one of the company namely, Alembic Ltd. , they have obtained an ex-parte injunction order from using the trade mark CEFO in relation to their drug. In para 9 of the said plaint it has been contended by the plaintiff that they learnt recently in 2002 when they filed the present suit that they have come to know that the defendant is using the similar drug formulation cefixime and the said pharmaceutical formation are used in making and manufacturing the drugs and are sold under the trade mark CEFI and CEFI-DT which is similar to the plaintiffs mark of CEFO-DT and cefo-P and therefore, the mark used by the defendant is deceptively similar to that of the plaintiff. It is the case of the plaintiff that on 03-10-2002 the plaintiff gave notice and since the defendant did not desist from using the said mark the plaintiff has filed the present suit on the basis of the passing off action for restraining the defendant from using the mark similar or deceptively similar to that of the plaintiff herein.

( 3 ) ON the other hand, the defendant has raised various contentions. It has been contended by the defendant that the plaintiff has made various false statements in the plaint particularly as to the date of the knowledge of the plaintiff about the defendants use of the said mark. Eve