Dinesh Maheshwari, J. - (1.) Heard learned counsel for the parties in both these Appeals, CMA No. 816/2003 and No. 897/2003, on admission and on prayer for interim relief.
(2.) These two appeals have been preferred by the defendants against the same order dated 30/7/2003 passed by the Additional District Judge (Fast Track) No. 2, Udaipur in Civil Misc. No. 14/2003 issuing temporary injunction in favour of the plaintiff in an action under Section 105 of the Trade and Merchandise Marks Act, 1958 ["the Act"] after finding that there is a prima facie case in the suit where plaintiff has raised such bona fide questions regarding previous user of the unregistered trade mark "BIC" that require further investigation and inquiry. While considering irreparable injury and balance of convenience, the learned trial Court observed that it was to be decided in the main suit as to who was the prior user of the disputed trademark of the goods in question and as prima facie case was found in favour of the plaintiff, if the defendant would not be restrained from using the disputed trademark, the plaintiff would suffer irreparable loss and so also loose its business goodwill; and any disturbance in goodwill is such an injury that cannot be measured in monetary terms.
(3.) It has been strenuously contended by the learned counsel for the appellants in these appeals that even from the documentary evidence produced by the plaintiff, it is apparent that the firm M/s. Tinwari Automobiles, of which the plaintiff refers herself as the Proprietor, had only been the sole selling agent of the tractor parts in question manufactured by the appellant Bharat Lal in his proprietorship concern M/s. Bharat Industrial Corporation; and that the learned trial Court has seriously erred in granting temporary injunction despite there being no prima facie case in favour of the plaintiff whose co-relation with the firm M/s. Tinwari Automobiles is itself in serious doubt.;