MANMOHAN SINGH, J.

1. By this order, I propose to decide the applications filed by the parties, i.e. application bearing I.A. No.17230/2011 filed by the plaintiff under Order XXXIX, Rules 1 & 2 read with Section 151 of CPC seeking an ad-interim injunction restraining the defendant from using, advertising or dealing in the impugned trade mark and trade name CITY BANQUETS or any other trade mark which is deceptively similar or identical to the trade mark and trade name CITY BANQUET and CITY PALACE BANQUETS, and another application bearing I.A. No.17646 of 2011 filed by the defendant under Order XXXIX, Rule 4 read with Section 151 of CPC for vacation/immediate suspension of the ex-parte ad-interim order dated 01.11.2011.

CASE OF THE PLAINTIFF

2. It is stated that the plaintiff-firm which is engaged in the business of catering and food outlets and banquets hall (herein after referred to as the said business and services) was initially constituted vide partnership deed dated 03.08.2009 between Shri Shyam Sunder Suri, the Managing Partner of the plaintiff firm and Shri Sandeep Gullah, the defendant herein. Thereafter, upon the retirement of the defendant, the plaintiff firm was reconstituted vide Re-Constitution Deed dated 10.07.2011.

3. It is averred by the plaintiff that since its constitution on 03.08.2009, the plaintiff adopted the trade mark/trade name CITY BANQUET and started using the same in the course of its said business and services. The defendant, upon his retirement, assigned all his rights, title, interest in good will and other assets of the business in the favour of the re-constituted firm by way of the Re-Constitution Deed dated 10.07.2011. Further, it is stated by the plaintiff that it has filed for registration of its CITY formative trade mark, the details of which are given in para 6 of the application.

4. The plaintiff, also claims copyright in the artwork of the plaintiff’s said trade mark and trade name CITY BANQUET. It is sated that the same is an original artistic work within the meaning of Section 2(c) of the Indian Copyright Act, 1957 and the plaintiff is its owner. The said trade mark and copyright is one of the most valuable assets of the plaintiff.

5. The grievance of the plaintiff against the defendant is that after taking retirement from the plaintiff firm on 10.07.2011, defendant has started the same business and services as that of the plaintiff firm in the vicinity of the plaintiff at 36, Rama Road, Industrial Area, New Delhi and has adopted an identical/deceptively similar trademark and trade name CITY BANQUETS in relation to his business and services. It is stated by the plaintiff that the defendant has no right to use the impugned trade mark after assigning the same in favour of the reconstituted plaintiff firm.

6. It is further stated that the plaintiff first came to know about the use of the impugned trade mark and trade name in the 2nd week of October, 2011 when the defendant served a legal notice dated 03.10.2011, upon the plaintiff claiming his rights over the impugned trade mark and trade name. In the said notice, it was also stated that the defendant is the proprietor of the trade mark and trade name CITY BANQUET and that his application for registration of the said trade mark is in the final process of registration. The defendant even filed an application bearing No.1851182 in class 42 for registration of the said trade mark CITY BANQUET label on 17.08.2009. According to the plaintiff, it has filed a fresh application for registration of the trade mark CITY BANQUET label and is also taking steps for opposing the application of the defendant for registration of the impugned trade mark.

7. The plaintiff avers that the use of the impugned trade mark and trade name by the defendant is in violation of the plaintiff’s proprietary rights in the said trade mark and trade name thereby-

(a) Passing off and enabling others to pass of his business and services as that of the plaintiff;

(b)