Badar Durrez Ahmed, J.

1. Two applications shall be disposed of by this order. The first application (IA.No. 9165/2007) has been filed by the plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) and the second application (IA.No. 10779/2007) has been filed by the defendant under the provisions of Order 39 Rule 4 CPC for vacation of the ex parte interim injunction which was granted by this Court on 14.08.2007 on the first application, that is, is 9165/2007. The Ex Parte Order:

2. A reading of the order dated 14.08.2007 reveals that the plaintiff claimed itself to be the proprietor of the registered trademark "RANA" in respect of its products which include steel rolled products, C. T. D bars, angles, flats, rounds, channels and girders. The plaintiff had stated that it had used the said trademark since 1993 continuously and that it had applied for the registration of the trademark on 14.12.1994 which was finally granted on 03.03.2006. The said registration was in Class 6 specified in Schedule IV to the Trade Marks Rules, 2002. It may be pertinent to note that while the application for registration was made at the time when the Trade and Merchandise Marks Act, 1958 was in operation, the actual registration was done on 03.03.2006 and in view of Section 159(2) of the Trade Marks Act, 1999, it would be deemed to be a registration under the said Act of 1999.

3. It was also stated that the sales of the plaintiff in respect of the goods in question run into several crores of rupees. It was alleged by the plaintiff that the defendant had recently started using the trademark "RANA tor" in respect of identical products, namely, steel bars. The plaintiff, as stated in the plaint, came to know of this in July 2007 and, consequently, had immediately approached this Court by filing this suit. On the basis of the statements made in the plaint and the documents filed along with the plaint as well as the submissions made by the learned Counsel for the plaintiff, the following order was passed on 14.08.2007:

In view of the averments made in the plaint and submissions made by the learned Counsel for the plaintiff, I am of the view that the plaintiff is entitled to ex parte orders. Accordingly, till the next date of hearing the defendants by itself or through their proprietors, partners, directors, agents, representatives, distributors, assigns, heirs, successors, stockists and all others acting for and on their behalf shall refrain from using, selling, advertising, displaying or through the visual, audio, print mode or by any other mode manner or dealing in or using the trademark RANA or any other identical or deceptively similar mark in respect of the impugned goods in relation to metal building materials, pipes, tubes of steel which include rods, flats, pipes, angles and building steels made of mild steel and related / allied products.

The Defendants arguments:

4. Being aggrieved by this order, the defendant has filed the second application, that is, the application under Order 39 Rule 4 CPC for vacation of the same. It was contended by Mr. Sudhir Chandra, the learned senior counsel who appeared on behalf of the defendant, that this Court would not have granted the ex parte injunction to the plaintiff had the full facts been disclosed. He submitted that, first of all, it was not disclosed to this Court that the defendant was the registered proprietor of the trademark "RANA tor". The defendants trademark was registered on 06.04.2005 under Class 19 in respect of "building material (steel)". Since the application for the same had been made on 26.04.2001, the registration would relate back to that date. It was also contended by Mr. Sudhir Chandra that both the plaintiff and the defendant have trademark registrations. The plaintiff has a registration in respect of the trademark "RANA" whereas the defendant has a registration in respect of the trademark "RANA to