Judgment

SHELAT, J.:- These two appeals under certificate, are directed against the common judgment and order of the High Court of Punjab, dated February 25, 1965, passed in four Letters Patent appeals filed by the two appellants-companies and the respondent company against the judgment and order of a learned Single Judge of the High Court.

2. The said appeals were the outcome of two applications filed in the High Court under Section 111 of the Trade and Merchandise Marks Act, XLIII of 1958 (referred to hereinafter as the Act) for rectification of the register in respect of two registered Trade Marks, Nos. 161543 and 161544, registered on November 20, 1953 in respect of cycle bells manufactured by the respondent-company. Registered Trade Mark No. 161543 was the numeral 50 and Trade Mark No. 161544 was the figure Fifty .

3. The two appellants companies carry on business in Kapurthala in Punjab. One of them the National Bell Co. Ltd., claimed to be manufacturing bells with numerals 33 . 50 , 51 and 40 inscribed on them since 1957, and the other M/s. Gupta Industrial Corporation since 1947 with numerals, 20 , 50 and 60 inscribed on cycle bells manufactured by it. The two applications for rectification arose out of suit filed in the District Court, Lucknow by the respondent-company against the two appellant companies on the ground of infringement of its said registered trade marks the numeral 50 and the figure Fifty . On April 24, 1961 the District Court stayed the said suits at the instance of the appellant companies giving them time for filing the said rectification applications in the High Court.

4. The grounds alleged in the applications were (1) that the numerals 50 and the word Fifty were common to the trade at the time of the original registration and were therefore not distinctive of the bells manufactured by the respondent-company. (2) that many other manufacturers in the market were using the numeral 50 and word Fifty on or in relation to cycle bells, and therefore the distinctiveness of the said marks in relation to the bells manufactured by the, respondent-company, if any, had been lost, (3) that the respondent-company did not get the registration of these marks with any bona fide intention of using them in relation to their cycle bells and that in fact there had been no bona fide use of the said trade marks in relation to their goods before the date of the applications. They also alleged that the respondent-company had fraudulently declared at the time of registration that they were the originators or proprietors of the said two marks 50 and Fifty . Both sides led evidence, oral and documentary, the latter including several price-lists from the possession of some of the dealers in cycle spare parts.

5. The learned Single Judge, who in the first instance tried the applications, found on a consideration of the evidence that cycle bells with different numerals and in particular the numeral 50 were being sold in the market before the respondent-company out its cycle bells with the numeral 50 and the figure Fifty inscribed on them in the market and continued to be sold right upto 1952 when import of foreign manufactured cycle bells was prohibited, and that despite such prohibition those cycle bells were being sold in the market as late as 1958, presumably from old stocks still lingering in the market, though not from any new imported stock. The learned Single Judge also found that there was no evidence of the original registration having been fraudulently obtained by the respondent-company, that there was no averment by the appellant companies that Lucas or any other concern had obtained registration of any mark either of the numeral 50 or the figure Fifty , and that therefore, Clause (a) of Section 32 did not apply. He further found that Clause (b) of Section 32 also did not apply. He held, however, that the trade mark, namely, the numeral 50 was not at the commencement of the proceeding