Hon’ble Pankaj Mithal, J.—The Chief Justice on 31.7.2014 was pleased to nominate me to hear this appeal.

2. The appeal arises out of judgment, order and decree dated 22.5.2012 passed in Original Suit No. 12 of 2001 Vishwadeepak v. Kishan Lal and another, passed by the Additional District Judge, Court No. 2, Ghaziabad.

3. It is a decree of permanent injunction in respect of infringement of a trade mark and passing off.

4. The Court by the impugned judgment and order has decreed the suit of the plaintiff Vishwadeepak and has restrained the defendants Kishan Lal and Jugal Kishore, their servants, agents and representatives etc. from using the trade mark “New Mdhurima Confectioners” and “New Madhurima Bakers” and other identical or similar trade marks and from carrying business in bakery and other cognate and allied products with the above trade mark or deceptively similar name “Madhurima”. Simultaneously, the counter claim of the defendant No. 2 Jugal Kishore has been dismissed.

5. The short story of the case is that Acharaj Lal, the father of the plaintiff who was the owner of shop No. A-7 Municipal Market, Jawahar Gate, Ghaziabad some time in the year 1964 started a confectionery business in the name of “Madhurima.” He was blessed with the said name by his personal friend Kirhsna Mitra, a renowned poet. He permitted his brother defendant No. 2 to run the aforesaid business.

6. The plaintiff on attaining maturity in 1972 entered into partnership with defendant No. 1 on 1.4.1972 to run the above confectionery business from the said shop in the name of ‘Madhurima’. The said partnership was dissolved w.e.f. 1.1.1981 vide dissolution deed dated 9.1.1981. The dissolution deed permitted the plaintiff alone to continue with the aforesaid business from the above shop and defendant No. 1 severed all his connections with the same.

7. The plaintiff instituted Original Suit No. 12 of 2001 against Kishan Lal and Jugal Kishore as defendant Nos. 1 and 2 respectively for a decree of permanent injunction restraining them, their servants, agents, representatives dealers etc. from using, displaying, advertising or in dealing with the manufacture and sale of bread, cakes, biscuits, rusks, pastries, buns and other allied/cognate goods under the trade name “Madhurima” and for redention of accounts and profits earned by them by doing business with the above trade name.

8. The above suit was filed on the allegations that the plaintiff is well established in the business of manufacturing and selling of bread, cakes, biscuits, rusks, bakery products, snack foods and other food products for human consumption from shop No. A-7, Municipal Market, Jawahar Gate, Ghaziabad. The above business was started by his father in the name of Madurima” wherein his father’s brother defendant No. 1 was later inducted as he was idle and had no other business of his own. The plaintiff also joined the business on attaining maturity and finally entered into a partnership with defendant No. 1 on 1.4.1972 for running the said business. Both of them together started doing bakery and confectionery business from the above shop but subsequently due to dominance of defendant No. 1 who was an elderly person and senior to the plaintiff, it became difficult to carry on the business jointly. Accordingly, it was decided to dissolve the partnership which was ultimately dissolved w.e.f. 1.1.1981 vide dissolution deed dated 9.1.1981. The business of the said shop in the name of “Madhurima” was taken over by the plaintiff alongwith all its assets and liabilities and he started running the same exclusively.

9. The plaintiff thereafter applied for registration of the trade mark “Madhurima” on 28.8.1981 stating that he had been running the said business independently from 2.1.1981, the date on which he became the sole proprietor notwithstanding the fact that he had been carrying the said business since 1972. His application for registration was duly advertised. It was not opposed. Final