JUDGMENT :

S.U. Kamdar, J.-The present notice of motion is taken out by the plaintiffs seeking reliefs that the defendants should be restrained from using the trade mark 'Ajanta' in respect of the non-medicated toilet preparations including tooth paste, soaps, shaving cream, shampoo and allied goods. The said injunction is sought by them on grounds of both infringement of "trade mark" and "passing off. However, the learned Counsel appearing for the plaintiffs has fairly stated that he is pressing relief only on the basis of a "passing off action in view of the fact that the defendants mark "Ajanta" is registered for the tooth paste. He has further submitted that though the reliefs in the motion are sought in respect of various non-medicated toilet preparations including soaps, shaving cream, shampoo, cosmetics and allied goods, for the purpose of the present notice of motion he is restricting his claim to passing off only in respect of tooth paste.

2. Some of the material facts of the present case, briefly enumerated, are as under:

3. In the year 1950 a company known as Bombay Brush Co. which was a partnership firm accepted a trade mark "Ajanta" in respect of tooth brushes. In 1958, a company known as Bombay Brush Co. Pvt. Ltd., was incorporated by the erstwhile partners of the partnership firm Bombay Brush Company who took over the business of the said partnership firm. It is the case of the plaintiff that during the period 1958 to 1987 the Bombay Brush Co. Pvt. Ltd., and its licensee Bombay Brush Baroda Pvt. Ltd., and Bombay Brush Belgaum Pvt. Ltd., used extensively the trade mark in respect of tooth brushes and shaving brushes. On 3.9.1959 the trade mark 'Ajanta' was registered under Registration No. 191915 in respect of brushes falling in Class 21 in favour of the said Bombay Brush Co. Pvt. Ltd. On 19.2.1964 one Mahipal v. Saraiya obtained registration of the word mark 'Ajanta' in respect of non-medicated toiletry preparations, cosmetics and perfumes falling in Class 3 of the schedule to the Trade and Merchandise Marks Act, 1958.

4. In the year 1971 a company known as Ajanta Transistor Clock Co., being the 2nd defendant herein conceived a trade mark Ajanta in respect of clocks, wrist watches, time pieces under Class 14 of the Schedule to the Trade and Merchandise Marks Act, 1958.

5. On 28.12.1978 the Bombay Brush Co. Pvt. Ltd., assigned the said trade mark 'Ajanta' registered under Class 21 to R.S. Champalal Vijaychand Saraiya, HUF. The said HUF was represented by Mahipal v. Saraiya. On 14.10.1987 the mark 'Ajanta" which was also registered under Class 3 under registration No. 220724-B was also assigned to R.S. Champalal Vijaychand Saraiya by the said Bombay Brush Co. Pvt. Ltd., On 14.10.1987, a registered user agreement was entered into between the said HUF of R.S. Champalal Vijaychand Saraiya and Bombay Brush (Indore) Pvt. Ltd., Bombay Brush (Vidarbha) Pvt. Ltd.' Bombay Brush (Belgaum) Pvt. Ltd., and Bombay Brush (Baroda) Pvt. Ltd. On 29.10.1987, two applications were made to bring on record the said HUF as subsequent proprietors of registered trade mark in Class 21 and 3. On 25.1.1988 and 10.8.1988 Registrar allowed both the said applications and thus the said R.S. Champalal Vijay Saraiya, HUF has come on record as a proprietor of the registered trade mark in respect of the mark 'Ajanta' both falling in Class 3 and Class 21.

6. In or about 1989 Ajanta Watch Pvt. Ltd., was incorporated. However, the said name of Ajanta Watch Pvt. Ltd., was subsequently changed in 1994 to Ajanta Watch Ltd., and in April 2002 to Ajanta India Ltd.

7. On 2.1.1989 the defendants also applied for registration of Ajanta trade mark in Class 14 for the purpose of clocks and time pieces. On 25.7.1990, the defendants made an application for registration of their trade mark Ajanta in classes 4, 13, 15, 17, 20, 22, 27 and 33. On 27.8.1990, the 2nd defendant made an application for registration of the mark Ajanta in respect of cosmetics, dentrifrices, tooth