( 1 ) THIS appeal at the instance of the original plaintiff Company arises out of passing off action must obviously be allowed for the reasons stated herein.

( 2 ) A few facts need be noticed in order to appreciate the rival contentions urged in this appeal by the learned Advocates of the parties hereto.

( 3 ) IN or about 1922 A. D. there was a firm carrying on business under the name and style of Bharat Flooring Tiles Company which was manufacturing and selling tiles under the trade name Bharat Tiles. The said firm. it is claimed by the plaintiff Company. had a large scale business and in the course of time its goods acquired a name in the trade. Somewhere in June 1940 the said firm entered into an agreement with the plaintiff Company whereby it was agreed by and between the parties that the firm would sell and the Company would purchase the lands. buildings furniture fixtures stock in trade of the business. together with the goodwill and all the trade marks connected therewith for a total sum of Rs. 9 92 400 for which the Company will allot the shares to the firm. The plaintiff Company thereafter in pursuance of the said agreement of assignment took over the lands buildings and the business of firm and carried on the manufacturing activity in the factory at Bombay. The objects of the plaintiff Company inter alia. as described in its Memorandum of Association are to manufacture and sell cement and marble mosiac tiles and terrazo tiles and slabs of all kinds for floors as well as stair cases The plaintiff Company claims that in pursuance of the said agreement of assignment. it acquired a proprietary interest in the trade name and mark of Bharat Tiles and throughout the length and breadth of the Company the business of the plaintiff Company is advertised and known as Bharat Tiles and in the trading circles in particular and the public in general the trade name Bharat Tiles is associated with the goods of the plaintiff Company. In about January 1968 the plaintiff Company came to learn through their licensees one Bharat Bobbing Pvt. Ltd. which was holding a licence from the plaintiff Company to manufacture and sell the mosaic and terrazo tiles under the trade name Bharat or Bharat Tiles in the city of Ahmedabad and the territory within the radius of 150 miles thereof that the respondent firm which was doing the business under the name and style of Bharat Tiles Manufacturing Company was passing off their goods so as to confuse or deceive the public. The plaintiff Company therefore by its letter of February 22 1968 called upon the respondent firm to desist from carrying on business in the manner in which they did and from using their trade mark Bharat Tiles for their products. The respondent firm however by its letter of March 4 1968 refused to comply with the demand made by the plaintiff Company and contended that their trade mark was B. T. C and they were carrying on business of manufacturing and selling their tiles under the same name of mark and that the trade mark of the plaintiff-Company to wit Bharat was so distinct that there was no likelihood of any confusion in the minds of the people. Some correspondence ensued thereafter between the parties reiterating their respective stands. The correspondence rested with the notice issued by the plaintiff Company on May 8 1968 calling upon the respon dent firm to desist from carrying on their business so as to pass off their goods as if they were the goods of the plaintiff Company.

( 4 ) SINCE the respondent firm failed to comply with the demand made in the notice and maintained its original stand in their letter of May 22 1968 in reply to the aforesaid notice the plaintiff Company was constrained to file the present suit in the Court of Second Extra Assistant Judge at Baroda being Regular Civil Suit No. 11 of 1968 for perpetual injunction restraining the respondent firm from using the trade name Bharat Tiles as part of their business so as to pass off their goods as t