Navelcar Hotels, Represented in This Act by Its Partner Mr. Harish Vinaeca Porob Navelcar, Indian National, Vs. Encore Hotels Pvt. Ltd. and - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - (d) the name 'hotel rajdhani' is well known throughout the state of goa and customers, visitors from various states from india and foreign countries know the reputation of 'hotel rajdhani' etc. opened a restaurant in mumbai under the name and style of 'rajdhani' which name and mark rajdhani was used in relation to cooked food, drinks, beverages and the like business, etc. which are located in different parts of the country which the annual turnover into several crores of rupees and employees and it has acquired an impeccable reputation and good will for its business and has a good standing in the market. happy plastic industries 1988 ptc 82, 183. 9. shri prem singh v. (b) in the judgment relied upon in this allahabad case in air 1995 supreme court 1395 was discussed, in which case as well the court concerned was the court of small causes. registered user has a prima facie strong case against unregistered user particularly when prior use is proved. (i) own invention before use which plaintiffs have failed to show. plaintiffs have failed to prove strong case of prior invention and use both as required for interim relief.a.h. joshi, j.1. this is an appeal arising out of interlocutory order passed by the district judge-2, panaji in civil suit no. 76/2008 filed by the appellants under the provisions of trade marks act seeking action against passing off.2. in the said suit, by application under order xxxix rule 1 & 2 of c.p.c., the plaintiffs sought the relief of temporary injunction restraining the defendants from using the trade/service mark 'rajdhani' being identical and deceptively similar to the trade/service mark 'rajdhani' claimed to be in use by the plaintiffs. according to the plaintiffs they are running the business of hotels providing temporary accommodation, restaurant, hotel accommodation and other related services, including in their hotel 'rajdhani' which is run at panaji.3. plaintiffs came to know that the defendants have acquired property at panaji and are about to commence their restaurant under the title 'rajdhani', in order to restrain the defendants from opening a restaurant and using the name 'rajdhani' plaintiffs filed a suit.4. as regards their right of using the trade mark 'hotel rajdhani' plaintiffs claimed in the plaint as follows:(a) plaintiffs started building the hotel in 1986 and commenced it from 1.8.1987.(b) total sales of 'hotel rajdhani' from 1.8.1997 to 2008 is to the tune of rs. 13,94,92,915.02 (rupees thirteen crores ninety four lakhs ninety two thousand nine hundred and fifteen and paise two only).(c) they have spent about rs. 9,74,518.50 (rupees nine lakhs seventy four thousand five hundred eighteen and paise fifty only)on advertisements itself.(d) the name 'hotel rajdhani' is well known throughout the state of goa and customers, visitors from various states from india and foreign countries know the reputation of 'hotel rajdhani' etc.(e) plaintiffs' application bearing no. 1296389 for trade mark of services of 'hotel rajdhani' was advertised as required by law.(f) the trade mark/service mark 'hotel rajdhani' has become associated with members of public, the trade, ministry of tourism, tourists, guides, travel agencies and the hotel trade with the plaintiffs exclusively.(g) the title sought to be used by the defendants namely 'khandhani rajdhani ek khandani parampara a vegetarian restaurant is announced for which banners have been put by other defendants.5. anticipating eminent danger by way of passing of, the plaintiffs' trade mark, plaintiffs moved application for temporary injunction pending the suit.6. the learned trial court was pleased to grant ex-parte injunction. it is a common ground that this ex-parte injunction was modified, and the injunction was restricted to goa only, pending hearing and disposal of the application for temporary injunction.7. the defendants filed their reply to the application for temporary injunction. summary of the reply is as follows:(a) that in or around 1980 one m/s jignesh investments private limited (hereinafter m/s jignesh i.p.l.) conceived and adopted the name and mark 'rajdhani' for use in respect of their hotel situated at baroda, gujarat and commenced use thereof and the same has been openly and extensively used in respect thereof and acquired tremendous reputation and goodwill.(b) the said ishwar b.r.a. granted permission to m/s jignesh i.p.l to use the said name and mark rajdhani in accordance with their instructions and control.(c) in 1987 said i.b.r.a. opened a restaurant in mumbai under the name and style of 'rajdhani' which name and mark rajdhani was used in relation to cooked food, drinks, beverages and the like business, etc. and the same has been continued.(d) in and around 2005, the defendant no. 1 company was incorporated inter alia to manage and operate restaurants, eating house, catering business, etc. and defendant no. 1 commenced managing and operating the barot family's business of providing food, drink, beverages, etc.(e) on may 13, 2005 defendant no. 1 applied for registration of the name and mark 'rajdhani' and obtained its registration bearing no. 1357145 in respect of services for providing food and drink, restaurant, face, bar services, canteens, catering, hotels, motels, self services restaurants, snack bars all included in class 42 of the fourth schedule of the trade mark rules, 2002 which is valid and extends to whole of india, hereinafter referred to as said activity.(f) the registration was duly assigned by defendant no. 1 in favour of said m/s ishwar b.r.a. a firm owned by barot family and an application has been made for recordal of said ishwar b.r.a.(g) as the registered proprietor of the said registration and defendant no. 1 was later permitted to use the name and mark rajdhani in respect of restaurant services, in accordance with and subject to their control with right to appoint or sub franchise the same.(h) the barot family has been in the business of hospitality and restaurant for the past several decades and have been running several restaurants and providing and offering specialty cuisine, foods and beverages under the name and mark rajdhani and that the said restaurants are owned, operated and run by members of the barot family for the past more than 40 years and that barot family is pioneer in providing and serving exquisite vegetarian food including gujarati meals and/or gujarati food in various cities.(i) the hotel under the name and style of hotel rajdhani was first established in baroda by said m/s j.i.p.l. and in 1984 the barot family took over the said j.i.p.l. who was owning and operating the hotel in the name and style of rajdhani in goa and that said business flourished and the name and mark rajdhani became distinctive and highly popular.(j) a partnership firm of barot family i.e. m/s. ishwar b.r.a. opened a restaurant in mumbai under the name and style of rajdhani which firm also began conducting and offering a wide range of services in the field of said activity.(k) the said ishwar b.r.a. appointed defendant no. 1 as its licensee/franchise to run and/or operate, manage the said activity under the name and mark rajdhani.(l) in pursuance of the same defendant no. 1 has appointed several sub-franchisees to offer a wide range of said activity subject to its supervision and control which in turn is exercised by said m/s. ishwar b.r.a. and that presently there are more than 20 such outlets located in different cities of the country including mumbai, new delhi, jaipur, indore, pune, bangalore, hyderabad, nagpur and baroda operating with the name and mark rajdhani.(m) the said rajdhani restaurant run by barot family under the guidance and control of said ishwar b.r.a. and their predecessors in title have also been keeping pace with the changing needs of the people and constantly innovating and improving their products and services.(n) m/s. ishwar b.r.a, a partnership firm whose present partners are ishwarlal p. barot, jugaldas p. barot and barot hotel pvt. ltd. are the present lawful and equitable proprietors of the name and mark rajdhani in relation to said activity.(o) defendant no. 1 is running and operating several restaurants from said i.b.r.a. which are located in different parts of the country which the annual turnover into several crores of rupees and employees and it has acquired an impeccable reputation and good will for its business and has a good standing in the market.(p) in july 2008 said m/s. jignesh i.p.l. assigned the right, title and interest to the name and mark rajdhani alongwith the goodwill in favour of m/s. ishwar bhuwan refreshment annex, (hereinafter ishwar b.r.a.) under deed of assignment dated 4.7.2008.8. in support of his submissions learned advocate for appellant has placed reliance on following judgments:1. a. levey v. henderson-kenton (holdings) ltd. and anr. (1974) 20 r.p.c. 617.2. dhariwal industries ltd. v. m.s.s. food products : (2005) 3 supreme court cases 633. ranbaxy laboratories ltd. v. universal twin labs : 2008 (3) bom. c.r. 160.4. mary ann barber v. edward calley manico 1893 10 tmc 93.5. national garments, kaloor, cochin v. national apparels, ernakulam, cochin : air 1990 kerala 119.6. sushil vasudev v. kwality frozen foods pvt. ltd. i.a. nos. 1 & 3 in misc. 1st appeal no. 1779 /1989 karnataka h.c. 162.7. mahendra & mahendra paper mills ltd. v. mahindra & mahindra ltd. civil appeal no. 7805 of 2001.9. judgments;respondents placed reliance on following1. ramdev food products pvt. ltd. v. arvindbhai rambhai patel and ors. : 2006 (33) ptc 281 (sc).2. wander ltd. and anr. v. antox india (p) ltd. 1991 ptc 1.3. gaw kan llye v. saw kyone saing air 1939 rang 343.4. consolidated foods corporation v. brandon & co. pvt. ltd. : air 1965 bombay 35.5. century traders v. roshanlal duggar & co. : air 1978 delhi 250.6. duncan agro industries ltd. v. somabhai tea processors (p) ltd. appeal from order no. 31/1992 of city civil court, ahmedabad in regular suit no. 5002/1991.7. abdul cadur allibhoy v. mahomedally hyderally 1901 bom lr 220.8. capital plastic industries v. happy plastic industries 1988 ptc 82, 183.9. shri prem singh v. ceeam auto industries 1990 ptc 149.10. george v. records, sari v. kiran jogani and anr. : 2004 (28) ptc 347 (del).11. p.m. dissels pvt. ltd. v. thukral mechanical works : air 1988 delhi 282.12. ciba geigy ltd. v. sun pharmaceutical industries, 1997 ptc (17).13. sua explosives & accessories ltd. and anr. v. s. kumars nation wide ltd. and ors. : 2002 (25) ptc 484 (mad).10. when the appellants' submissions in rejoinder was about to conclude, learned senior advocate mr. pereira sought permission to argue a new point about the jurisdiction of the judge to whom suit was alloted, and who had decided the application for temporary injunction. on his oral request he was granted leave to appeal memo and raise additional grounds.11. gist of grounds introduced by amendment and sought to be argued can be summarised as follows:1) the court in relation to section 134 of trade mark act, 1999 is the court of district judge himself and all other courts such as joint district judge, additional district judge, assistant district judge, adhoc district judge or the district judge i, or district judge ii, or any other as per the new nomenclature shall be not competent to hear and decide the suit.2) though the suit was made over by the district judge to the district judge ii, and plaintiff had participated in the process, yet consent of the parties does not confer the jurisdiction of the court and therefore, on this ground alone the impugned order is liable to be set aside and matter needs to be sent back for hearing and disposal according to law.12. on the point of jurisdiction as now raised, learned senior advocate mr. pereira for the appellants has placed reliance on following judgments:1. j.b. mangharam and co. gwalior v. k.b. kher and ors. 1956 madhya bharat page 183.2. i.t.i. ltd. allahabad v. district judge, allahabad air 1998 allahabad, page 313.3. fountain head developers v. mrs. maria arcangela sequeira 2007 (3) all mr page 304.13. learned senior advocate mr. dessai in reply to the point of objection as to jurisdiction advanced following submissions:(1) having participated and acquised with the process of hearing by the learned district judge ii, now it is not open and available to the plaintiff to raise the point of jurisdiction at the fag end of hearing.(2) the term referring to the court used in section 134 is 'district court' which does not mean 'district judge'. it refers to the institution of the court and not personate disingnata.(3) the term district court as defined in goa civil courts act, 1965, and other provisions, all other judges to whom the power of district court can be entrusted, are competent to decide a suit under trade marks act.14. mr. s. dessai learned sr. advocate has placed reliance on the reported judgment namely:1. tikaram and sons ltd. etc. v. the commissioner of sales tax, j.p. 1968 sc 1286.2. narhari shivram shet narvekar v. pannalal umediram air 1977 sc 164.3. rabindra kumar dey v. state of orissa air 1977 sc 170.4. sohan singh and ors. v. general manager, ordnance factory khamaria, jabalpur and ors. 1984 (supp) scc 661.5. shri octaviano teogono alcacoas v. smt. rosa milagrina a. 2005 (1) all mr 758.15. in the light of controversy raised in the trial court and now before this court, questions which arise for consideration of this court are as follows:(1) point no. 1.does the term district court include the district judges next in rank to the principal district judge, having same judicial powers and functions 1st as amongst those under section 134 of trade mark act read with the provisions of goa civil courts act?(2) point no. 2.prima facie who is the first to invent and commence the use of trade mark?(3) point no. 3.are the plaintiffs/appellants entitled for the relief of temporary injunction as prayed?16. considering that the question of jurisdiction is raised, it would be appropriate to deal with question of jurisdiction, first in sequence and then to decide other issues. as to jurisdiction of other district judges.17. it is necessary to have a glance at section 134 of the trade marks act, 1999 which is for ready reference quoted below:134. suit for infringement, etc. to be instituted before district court.1. no suit(a) for the infringement of a registered trade mark or(b) relating to any right in a registered trade mark; or(c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered. shall be instituted in any court inferior to a district court having jurisdiction to try the suit.2. for the purpose of clauses (a) and (b) of sub-section (1), a 'district court having jurisdiction' shall, notwithstanding anything contained in the code of civil procedure, 1908 (5 of 1908) or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them actually and voluntarily resides or carries on business or personally works for gain.18. it is also necessary to have a glance at section 3, 5, 9 and 14 of goa civil courts act, 1999. section 9 refers to additional district judges.section 3. district court.-there shall be a district court for the whole of the union territory, presided over by a judge to be called the district judge and appointed by the administrator by the administrator may from time to time by notification in the official gazette, alter the limits of the district or create new districts for the purposes of this act, in consultation with the high court.section 5. original jurisdiction of district court. - the district court shall be the principal court of original civil jurisdiction in the district, within the meaning of the code of civil procedure, 1908 or any other law for the time being in force?section 9. additional district judges. the administrator may appoint one or more additional judges to the district court who shall be invested with co-extensive powers and a concurrent jurisdiction with the district judge, except that an additional district judge shall not keep a file of civil suits or appeals and shall transact such civil business only as he may receive from the district judge, or as may have been referred to him by order of the high court.section 14. assistant judge with powers of district judge.-(1) the administrator may by notification in the official gazette invest an assistant judge with all or any of the powers of a district judge within a particular part of a district and may, by notification from time to time determine or alter the limits of such part.(2) the jurisdiction of an assistant judge so invested shall pro tanto exclude the jurisdiction of the district judge from within the said limits.(3) every assistant judge so invested shall ordinarily hold his court as such place within the local limits of his jurisdiction as may be determined by the administrator, but may, with the previous sanction of the high court hold it at any other place within such limits.19. this court has given anxious consideration and has scrutinized the multifaceted submissions advanced by respective advocates on the point of jurisdiction.20. substance of the scheme as prescribed and laid down in goa civil courts act 1999 can be conveniently summarised as follows:(1) district judge or principal district judge who is at the helm in district court is the masters of roaster.(2) the principal district judge maintains only one file or register for district and no other judge in the district court exercising power of district judge is competent to do so.(3) the principal district judge allots work tendered to his file and registered to any other district judge or additional or adhoc additional district judges who have original and appellate jurisdiction which is same and similar to that of first, amongst district judges i.e. the principal district judge.(4) goa civil courts act does not render district judges or additional district judges judicially subordinate to the first amongst them, who is first amongst them and is the mater of roaster and administrative head.(5) there is nothing in the scheme of the goa civil court act which makes all other district judges inferior in their judicial power or judicially subordinate to the district court or the principal district judge.(6) district court is a judicial institution while district judge, 1st 2nd 3rd additional district judge,,, etc. have to be and are individuals attached to the descriptions and invested with judicial powers and functions.(7) language used in section 134 of trade marks act, 1999 stipulates as court prescribed therein to be 'district court' and not the district judge or 1st amongst those in the cadre.21. analysis of the case law relied upon by learned advocate for appellant, and the respondent, and provisions of law, what emerges is as follows:(a) single judge of allahabad high court in i.t.l. ltd. has taken a view that additional district judge would not mean district court. the law has been construed in the light of provisions of civil courts of act of bengal, agra and assam.(b) in the judgment relied upon in this allahabad case in air 1995 supreme court 1395 was discussed, in which case as well the court concerned was the court of small causes.(c) j.b. mangaram & co. supra. in this case the division bench of madhya bharat high court took a view that the expression 'district judge' used in section 7 - 3(b) does not include in the definition of 'district judge'.(d) with reference to use of the word 'a' appearing in section 7 - 3(b) of industrial disputes act, lordships of madhya bharat high court took a view that the language of the section presumed the district judge to be the principal court of civil jurisdiction thereby meaning of district judge himself and even held that the definition of district judge which includes the definition of district judge in article 236 of constitution of india does not help in interpreting section 7(b) to comprise therein of additional district judge.(e) the question in fountain head developer's case, which was decided by the full bench of this hon'ble court arose where civil judge of senior division who had decided the matter.(f) the question before the full bench of this court was not as to whether amongst the district judges other than principal district judge 1st himself or amongst all those who, constitute of the district court, would answer the term district court.(g) of late it is not open to a party to turn the face and argue that the court to whose jurisdiction it submitted, availed the interim order and now to deny its jurisdiction.22. from scrutiny of provisions and citations on the point of jurisdiction, this court reaches following conclusions:(a) if scheme of provisions of goa civil courts act is discretely seen, it would reveal that baring that there shall be only one register (file) for entire district court.(b) judicial functions of district judge and additional/adhoc district judge are concurrent in generic.(c) only distinction is that additional district judge has to hear cases made over to him by the district judge.(d) district court as contemplated by section 134 of trade marks act is not synonymous to district judge as a persona designeta.(e) reading section 134 in order to mean to exclude one and all judges already exercising the powers of district court from the definition of district court would mean imputing word 'court' to mean 'judge' or substitute the term 'district court by the term 'principal district judge' or first amongst the district judges of the district court.(f) such substitution does not appear to be the intention of legislature. such act of judicial substitution would mean legislating upon legislation distinct from judicial function of interpretation.23. this court therefore holds on point no. 1 that the term 'district court' as connoted by section 134 of trade mark act, 1999 read with provisions of goa civil courts act, that the district judge ii was and is competent to decide suit under section 134 of trade mark act, 1999, when made over to him. as to merits and as to point no. 2 and 3 framed by this court.24. this court has considered the facts pleaded, argued and summarised in initial part of this judgment as respective case. what reveals and emerges from the documents on record is summarised as below:(a) the trade mark comprising of the word 'hotel rajdhani' has been in use for the said activity and was for the first time invented and brought in use by the defendants' predecessors which was a partnership firm.(b) this mark has been assigned from time to time and continued in use by the defendants which is apparent from the documents on record, existence whereof has not been challenged.(c) the plaintiffs have been using the group of words 'hotel rajdhani' in their business, however, admittedly their restaurant is titled as 'nandan' and the lodging and boarding business of plaintiff is run in the name and style 'rajdhani'.(d) the defendants are admittedly using the said trade name in many places in india.(e) the premises of business of the plaintiffs is only in panaji.(f) defendants already have the trade mark registration.(g) plaintiffs' application for registration is much later in date.(h) plaintiffs' application for registration of trade mark is already objected to by the defendants.(i) plaintiffs' user of words 'rajdhani' are for lodging, its hotel is 'nandan'.(j) word 'rajdhani is defendants' invention use etc. is prior in time and is almost all over.(k) it is not, prima facie proved that plaintiffs' pecuniary turn over is solely of said i.e. hotel activity in the light of plaintiffs' admission that it has multifarious activities and business.25. present is a case of clash between a registered trade mark user and unregistered contender, and the defendants have proved from documentary evidence their invention, use and registration, all prior in time than the plaintiffs. registered user has a prima facie strong case against unregistered user particularly when prior use is proved.26. it is proved that plaintiffs' claim is based on absolute right to use and hence a claim in nature of passing which action would ordinarily be maintainable even in the absence of registration, however plaintiffs have to prove:(i) own invention before use which plaintiffs have failed to show.(ii) antecedant use. plaintiffs have failed to prove strong case of prior invention and use both as required for interim relief.27. plaintiffs have not demonstrated any grounds as to how they dismantle the defendants' right recognized under a statute.28. this court has considered rival submissions based on various reported judgments. in the light of what this court has found on facts, which are very obvious. any subtle issues are not required to be decided with aid of long list of case law. therefore, though each citation relied upon by learned senior advocates was read over and has been perused by this court, those are not discussed.29. long drawn submissions were advanced, however it is not emerging that impuged order of district court is erroneous on facts or contrary to law. in these premises, no interference is permissible.30. this court concures with the fact findings and reasons recorded by the district court.31. appeal has no merits and is dismissed with costs.