The main legal point established in the judgment is that under the Trade Marks and Merchandise Act, 1958, and the Copyright Act, 1957, a plaintiff can claim relief for damages or rendition of accounts, and may plead for both remedies in the alternative.

( 1 ) THE defendants have moved this application under Order VII Rule 11 (d) of the Code of civil Procedure read with Section 106 (1) of the Trade marks and Merchandise Act, 1958 (for short `the Act ) for rejection of the plaint. Before coming to the grounds on which the defendants want rejection of the plaint, I may state the case of the plaintiff in the suit.

( 2 ) THE plaintiff, Titan Industries Ltd. , is a joint venture of Tata Group and the Tamil Nadu industrial Development Corporation (TIDCO ). It was incorporated in the year 1987 and its activities include manufacture and marketing of watches, clocks and jewellery. It enjoys a 25% share of the total domestic market. The cause of filing the present suit is the manufacturing and marketing of watches by the defendants under the trade name SONA. It is alleged that the defendants have not only adopted a deceptively similar trade mark, but have also adopted a similar lay out and get up for the packaging and have copied the dials of the plaintiff. Therefore, present suit is filed for permanent injunction, delivery of rendition of accounts and damages. For the purpose of the application filed by the defendants, we are concerned with the reliefs claimed by the plaintiff in respect of rendition of accounts and damages and the prayer made in this behalf is as under: (d) An order for rendition of accounts of profits illegally earned by the defendants by reason of infringement of the plaintiff s copyrights, infringement of trade marks as aforesaid and by passing off their goods and/or business as the goods and business of the plaintiff, and a decree be passed against the defendants in the sum o the amount so ascertained. (e) An order for damages to the tune of Rs. 5,05,000/- payable to the plaintiff on account of loss of sale and reputation.

( 3 ) IT may also be noted that for damages relief is valued for the purpose of court fee and jurisdiction at Rs. 5,05,000/- and for rendition of accounts the relief is valued at Rs. 20 lacs.

( 4 ) IN this application filed by the defendants, the submission is that the plaintiff can, as per the Section 106 of the Act claim the relief either for damages or for rendition of accounts and it is not permissible for the plaintiff to claim both the reliefs. Section 106 (1) of the Act reads as under: 106. Reliefs in suits for infringement or for passing of.- (1) The relief which a court may grant in any suit for infringement or for passing off referred to in section 105 includes an injunction (subject to such terms, if any, as the court think fit) and the option of the plaintiff, either damages or on account of profits, together with or without any order for the delivery-up of the infringing labels and marks for destruction or erasure.

( 5 ) IT is, therefore, submitted that the suit is barred by law and is liable to be dismissed.

( 6 ) THE plaintiff has resisted this application on the ground that the suit is not merely for infringement/passing off of trade mark under the Act but it is also a suit for infringement of copyright under the copyright Act, 1957 and thus in view of the provisions of section 55 of the Copyright Act, relief of damages as well as rendition of accounts can be claimed. Without prejudice to this contention, it is submitted that even under the Act, where one or the other relief can be claimed, it is necessary for the plaintiff to make prayer for both the reliefs and the plaintiff can exercise the right of election of a particular remedy at the conclusion of the hearing once the infringement of trade mark/passing off thereof is established. In support of this plea, the plaintiff has referred to English case law a well as passages from certain books.

( 7 ) AFTER hearing learned counsel for the parties, I am of the view that the learned counsel for the plaintiff is justified in his submission on both the counts and, therefore, this application is liable to be dismissed.

( 8 ) PARA 11 of the plaint would indicate that sp