( 51 ) FOURTHLY, there is no reasonable prospect that the inquiry would reach a positive result. Kerly says that account of profits is an equitable remedy and the court has a discretion whether or not to grant it. Only in certain cases will the court grant an account of profits. I do not think this is one of those cases where I ought to order an inquiry into profits.

( 52 ) AT the fag end of the case before me the defendants made an application (CM 962 of 1979) for additional evidence. I do not think there is any ground to allow the application as none of the conditions of 0. 41 rule 27, Code of Civil Procedure is satisfied. The application, is accordingly dismissed.

( 53 ) FOR these reasons the appeal is dismissed. Cross-objections are allowed to this extent that it is held that the defendants-appellants, in addition to infringement of registered trade mark, are also guilty of the tort of passing-off. Cross-objections are dismissed in so far as the claim for accounts of profits is concerned. The decree for injunction passed by the trial court is affirmed. The defendants are ordered to deliver up the offending boxes, wrappers, letters heads for destruction. The defendants shall pay the costs of the suit and the appeal. On the cross objections I make no order as to costs.

AVADH BEHARI ROHATGI, J

( 1 ) THIS is a defendants appeal from the order of the Additional District Judge dated July 10, 1967.

( 2 ) THE plaintiffs are a partnership firm carrying on business under the name and style of M/s. Banaras i Dass and Brothers at Chandni Chowk, Delhi since the year 1949. They are the registered proprietors of the trade mark elora registered under number 175751 in class 14 as of the date August II, 1956 in respect of watches, time-pieces, clocks and their parts. The trade mark has been renewed from time to time and is subsisting. The plaintiffs have been selling clocks with the trade mark elora since 1955.

( 3 ) IN October 1962 the plaintiffs found an advertisement issued by the defendants "ellora INDUSTRIES" with ellora as the trade mark for time-pieces. By a notice in writing dated December 26, 1962 the plaintiffs called upon the defendants to desist from manufacturing, using, selling or offering for sale their goods under to mark ellora . The defendants by their reply dated January 9, 1963, assured the plaintiffs that they were newcomers in the industry and did not want to quarrel over a name. They said they were prepared to stop using the name ellora and had chosen a new name for their time-pieces.

( 4 ) BUT the defendants continued using business name "ellora Industries". The plaintiffs again called upon the defendants to desist from infringing their trade mark elora by using the same as part of their trading style. Some correspondence was exchanged but the defendants did not give up their trading name.

( 5 ) THE defendants having refused to discontinue the use of the word ellora in their business name, the plaintiffs on December 2, 1964 commenced an action in the court of the district judge to restrain them. Two allegations were made in the suit. Firstly, that the use of the trade mark elora as the key portion of the trading style "ellora Industries" was an infringement of the registered trade mark elora which was exclusive property of the plaintiffs, and secondly, that the use of the trade mark as a trading style was chosen deliberately and fraudulently in order to trade upon the reputation of the plaintiffs and to pass off the goods manufactured by the defendants as the goods of the plaintiffs. The plaintiffs asked for a decree for permanent Injunction to restrain the defendants from using the mark elora or any other similar mark which is an infringement of the plaintiffs registered trade mark and to prevent them from passing off their goods as the goods of the plaintiffs. A decree for accounts of profits earned by the defendants was also sought.

( 6 ) THE defendants contested the suit. They raised a number o

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