( 1 ) THE questions for determination in this appeal are whether the appellants application under Section 46 of the Trade and Merchandise Marks act, 1958 for removal of the trade mark of the respondent no. 1 on account of non-use was within time and whether non use by respondent no. 1 was on account of restriction on import, constituting special circumstances.

( 2 ) THE appellants have impugned the judgment of the learned single judge under Section 109 (5) of Trade and Merchandise Marks Act, 1958 in the present appeal. The appellants application under section 46 of the Trade and merchandise Marks Act, 1958 was dismissed by order dated 19th September,1997 in co no. 10 of 1982 by a learned Single Judge holding that the application of the appellants under Section 46 of Trade and Merchandise Marks Act, 1958, hereinafter referred to as `act was barred under Section 137 of the Limitation Act,1963 and that the respondent no. 1 had established his intention to use the trade mark and he could not effectively use the trade mark owing to the restriction imposed by the government.

( 3 ) TO comprehend these disputes, the following relevant facts need consideration. Fedders Quioga