MANMOHAN SINGH, J

1. By this order, I shall dispose of the application bearing I.A. No.18464/2011 filed by the defendant seeking stay of the suit under Section 124 of Trade Marks Act, 1999 (hereinafter referred to as the ‘Act’) read with Section 151 CPC.

2. Briefly stated, the defendant has filed this application on the ground that the rectification proceedings initiated by the defendant against the plaintiffs’registration of the trade mark MERONEM are pending disposal. It is stated in the application that the mark MERONEM on the basis of which, the infringement suit is filed is sought to be rectified by the defendants by filing an application for rectification bearing No.94/TM/ Del/2005 pending before IPAB. It is also stated in the application that the plaintiffs have also challenged the validity of the defendant’s trade mark MEROMER by filing similar application before IPAB against the defendant’s registered trade mark and thus, the suit is liable to be stayed by this Court under Section 124 of the Act.

3. On the other hand, the plaintiffs have filed the reply taking the following objections:

(a) The present application is not maintainable as the same is filed in violation of the provisions of Section 124 of the Act.

(b) The present application is not maintainable as the defendants have filed the rectification without taking the leave of the Court and thus the same may not attract Section 124 of the Act.

(c) The said application is time barred as the rectification is filed by the defendant against the plaintiffs’ trade mark in the year 2005 and the said application is thus not maintainable after the lapse of 5 years.

(d) It is also stated by the plaintiffs that the plaintiffs had filed the application earlier on the similar facts which was dismissed by this Court. The defendant has filed the similar application for the rectification filed during the same period. Thus, the said application should be dismissed on the same basis.

(e) The said application filed by the defendant is barred by the principles of constructive res judicata.

4. Thus, as per the plaintiffs, the said application is liable to be dismissed. The defendant again has filed the rejoinder to the said pleas taken by the plaintiffs by responding in the following manner:

(a) The defendant is not liable to seek the leave of the Court prior to filing of the rectification petition. The reasoning given by the defendant is that the mark of the plaintiffs stood in the name of some Zeneca Limited and the said company is not party to the proceedings. If that is so then, the leave of the Court is not required to be taken when the rectification proceedings is filed against the mark of the non party by the defendant but the defendant can certainly ask for stay as the mark MERONEM is relied upon by the present plaintiffs.

(b) There is no delay in filing the present application as the defendant has filed the application immediately after pleading the invalidity of the plaintiffs’ registration.

(c) The plaintiffs’ application for the stay was rightly dismissed by this Court as the plaintiffs had challenged the defendant’s registration bearing No.1299987 bearing the trade mark MEROMER and the said defendant is party to the proceedings and thus, the leave is warranted.

5. I have gone through the application, reply and rejoinder and carefully given consideration to the submissions made by the learned counsel for the parties at bar which are the same as noted above.

6. Before proceeding further in the matter, it is noteworthy to mention some more events which are the part of the records of the present proceedings and are worth mentioning and will aid in deciding the present application.

7. The plaintiffs had filed the rectification against the mark of the defendant in the year 2005 by filing rectification on TM-26 before IPAB. In the present suit, I.A. No.8561/2005 was filed by the defendant under Order XXXIX, Rule 4 CPC which was decided by the learned Single Judge of th