ORDER

The primary issue that arises for consideration in these applications filed under Section 124 of the Trademarks Act is whether to satisfy the requirement of Section 124 of the Trademarks Act, a plea should necessarily be taken in the written statement that the registration of the plaintiff’s trademark 'VARAM' is invalid or it would suffice if such a plea was taken by the defendant in the counter affidavit filed in the Interlocutory Applications filed by the plaintiff seeking interim injunction.

2.In order to understand the issue on hand better, Section 124 of the Trademarks Act is extracted hereunder:

'124. Stay of proceedings where the validity of registration of the trade mark is questioned, etc.—

(1) Where in any suit for infringement of a trade mark—

(a) the defendant pleads that registration of the plaintiff’s trade mark is invalid; or (b) the defendant raises a defence under clause (e) of sub-

section (2) of section 30 and the plaintiff pleads the invalidity of registration of the defendant’s trade mark, the court trying the suit (hereinafter referred to as the court), shall, —

(i) if any proceedings for rectification of the register in relation to the plaintiff’s or defendant’s trade mark are pending before the Registrar or the 2[High Court], stay the suit pending the final disposal of such proceedings;

(ii) if no such proceedings are pending and the court is satisfied that the plea regarding the invalidity of the registration of the plaintiff’s or defendant’s trade mark is p rima facie t enable, raise an issue regarding the same and adjourn the case for a period of three months from the date of the framing of the issue in order to enable the party concerned to apply to the 2[High Court] for rectification of the register.

(2) If the party concerned proves to the court that he has made any such application as is referred to in clause (b) (ii) of sub- section (1) within the time specified therein or within such extended time as the court may for sufficient cause allow, the trial of the suit shall stand stayed until the final disposal of the rectification proceedings.

(3) If no such application as aforesaid has been made within the time so specified or within such extended time as the court may allow, the issue as to the validity of the registration of the trade mark concerned shall be deemed to have been abandoned and the court shall proceed with the suit in regard to the other issues in the case.

(4) The final order made in any rectification proceedings referred to in sub-section (1) or sub-section (2) shall be binding upon the parties and the court shall dispose of the suit conformably to such order in so far as it relates to the issue as to the validity of the registration of the trade mark.

(5) The stay of a suit for the infringement of a trade mark under this section shall not preclude the court from making any interlocutory order (including any order granting an injunction, directing account to be kept, appointing a receiver or attaching any property), during the period of the stay of the suit.'

3.In the case on hand, the applicant's/defendant's right to file the written statement has been forfeited as the maximum statutory period of 120 days for filing the same has got expired. However, in the Interlocutory Applications filed by the plaintiff seeking for interim injunction to restrain the defendants from using the plaintiff's trademark 'VARAM', a counter affidavit was filed by the defendant in those applications and in the said counter affidavit, a specific plea was taken by the defendant that the registration of the plaintiff's trademark 'VARAM' is invalid. The relevant paragraph, where such a specific plea was taken by the defendant from the counter affidavit filed in the interim injunction applications, is re-produced hereunder:

'INVALIDITY OF THE PLAINTIFF'S TRADEMARK:

18.It is submitted that the plaintiff had applied and received registration of defendant even after knowing that defendant is the prior user of the sai