The court considered the delay in bringing the action, the continuing cause of action, and the prima facie view on the assignment of the mark and the goodwill of the business in vacating the ex parte ad interim injunction.

( 1 ) ALONG with the suit which inter alia seeks a decree for permanent injunction restraining defendants from using the word havell s as its mark or as part of its corporate name, plaintiffs sought interim injunction as per prayer made in IA No. 7880/2004. On 25. 11. 2004 an ex parte ad interim injunction was granted to the plaintiffs restraining the defendants its Chairman, Directors, Promoters, Officers, Servants, Agents and any one acting on their behalf from using the mark havell s or the corporate name havell s Electronics Pvt. Ltd. on any of their brochures, products and packaging. By means of IA 75/2005, defendants pray that the ex parte ad interim injunction be vacated. Arguments were heard on both applications on 31. 1. 2005. Plaintiffs filed IA No. 1906/2005 and prayed for leave to file some documents which as per plaintiffs were relevant for determination of the issues raised. Application was allowed vide order dated 10. 3. 2005. Defendants were granted liberty to file documents in rebuttal. Needful has seen done by the defendants.

( 2 ) ONE Shri Haveli Ram Gandhi commenced business in electrical goods in the year 1942 and traded under the name and style havells Electricals Sales corporation . It was his sole proprietary firm. By 1971, Shri Haveli Ram Gandhi had obtained registration of the mark havell s in Class 11 in respect of electric lamp holders. Two of his applications in respect of electrical goods in class 7 and 9 were pending.

( 3 ) ON 9. 10. 1971 by and under a deed of assignment, Shri Haveli Ram gandhi as proprietor of Havell s Electrical Sales Corporation, assigned his proprietary rights in the trade mark havell s in favour of Smt. Vinod Gupta, shri Surinder Kumar Gupta and Shri Surjit Kumar Gupta carrying on business in name of havell s Industries. Team of assignment reads as under:

"in pursuance of the said agreement entered into between the parties herein and in consideration of the balance of the sum of Rs. 20,000/- (Rupees twenty thousand only) well and truly paid by the Assignees to the Assignor by cheque No. CHD 1485 drawn on the New Bank of India ltd. Chandni Chowk, Delhi in favour of the Assignor, for Rs. 18,000/- (Rupees eighteen thousand only) the receipt whereof the Assignor doth hereby acknowledge and of and from the same and every part thereof acquit, release and discharge the Assignees, the Assignor doth hereby sell, transfer, convey and assign all his proprietary rights in the Registered trade Mark No. 167484 in respect of Electric Lamp Holders with or without Shade Carrier Rings and in the Trade Marks in the pending application Nos. 272378 and 272379, pending with the Registrar of Trade marks, Delhi, in respect of the goods of Electric Motors and Parts thereof, electrically Operated Pumps, Starting Devices for Motors, Engines and blowing Engines and also in respect of the Electric Switchers, Electric wires and Cables, House Service Meters, Ammeters and Volt-Meters, electric Relays, Thermostat, Distribution Boards and goods of the same description but without the goodwill of the business. "

( 4 ) BEING relevant, since defendants urged a submission thereon, assignment clearly records that goodwill of the business was not assigned/transferred.

( 5 ) DEFENDANT No. 6, Havell s Pvt. Ltd. was incorporated in the year 1956 with Shri Haveli Ram Gandhi as one of its directors. The company was doing business since incorporation, business being in electrical goods. By 1971 controlling interest of said company went into the hands of Lalit Seth group. On 11. 10. 1971, Havell s Pvt. Ltd. wrote a letter to Haveli Ram Gandhi to the effect that it would remove the trade marks Havell s from its use at the earliest. This commitment was reaffirmed under cover of another letter dated 6. 11. 1971.

( 6 ) DEFENDANT No. 5, M/s Havell s Electronics Pvt. Ltd. came to be incorporated in the year 1974. This company also traded in electrical goods. This company too went under the cont