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58. Mr. Kadam has submitted that the decisions relied upon by the Defendant namely Essel Propack v Essel Kitchenware Ltd.18 and Unichem Laboratories Limited v Eris Lifesciences Pvt. Ltd.19 is misconceived since the entire line of cases have effectively been reversed by the ratio decidendi of the decision of the Division Bench of this Court in Torrent Pharmaceuticals Limited (supra). Mr. Kadam has submitted that the decision of the Single Bench in Torrent Pharmaceuticals Ltd. Vs. Wockhardt Pharma Ltd.20 which had returned a finding of acquiescence by stating that the Plaintiff and its predecessors stood by and allowed the Defendant's sale to increase and holding that 18 2016 SCC Online Bom 937.

67. Dr. Saraf has relied upon the decision of this Court in Brihan Karan Sugar Syndicate Pvt. Ltd. Vs. Karma Veer Shankarrao Kale Shahakari Sakhar Karkhana Ltd.25at paragraphs 1, 14 to 22, 30 to 33 and 36 to 42. He has further relied upon the 25 2018 (3) MH.L.J. 746 922-nmcd-516-2017.doc decision of this Court in Essel Propack Vs. Essel Kitcheware26 at paragraphs 10 to 14 in this context.

68. Dr. Saraf has submitted that the Plaintiffs approached this Court with the stand that from 2008 to 2017, they believed that the Defendant would not use the mark. This stand is ex-facie false and clearly an attempt to mislead this Court. The Plaintifs were expressly aware of the fact that the Defendant was carrying on and continued to carry on business of selling footwear under the mark "REGAL" even after the receipt of the Notice of oppositon. He has submitted that the Plaint is entirely silent on any steps whatsoever being taken by the Plaintiffs to verify whether or not the Defendant had in fact stopped using the mark REGAL for footwear. Dr. Saraf has relied upon the case of Shri Gopal Enginnering and Chemical Works Vs. Promx Laboratory,27 and Warner Bros Entertainment Ltd. Vs. Harinder Kohli,28 in support of his submission that where statements made by the Plaintiffs were found to be misleading the Court by suppressing true facts, this would disentitle the grant of injunction.

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85. Dr. Saraf has further relied upon the decision which has also been cited on behalf of the Plaintiffs i.e. Power Control (Supra) in support of his contention that where the Plaintiffs stood by knowingly and let the Defendants build up an important trade until it had become necessary to crush it, then the Plaintiffs would be stopped by their acquiescence. Dr. Saraf has relied upon Unichem Laboratories (Supra) and Essel Propack Ltd. (Supra) as well as Yonex Kabushiki Kaisha Vs. Philips International32 in support of his contention that there has been acquiescence of the Plaintiffs in the present case by allowing the Defendant to expend money over considerable period in building up its business without taking steps to prevent the Defendant which would clearly amount to acquiescence on the Plaintiffs' part. In Essel Propack (Supra), this Court has held that the reference to 'positive act' in Power Control (Supra) in the context of acquiescence cannot be suggested to be an actual green light, or else there would be no distinction at all between consent and acquiescence.

32 (2007) 35 PTC 345.

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86. Dr. Saraf has submitted that mere addressing of a notice of opposition dated 14th February, 2008 does not aid the Plaintiffs in explaining delay. The Plaintiff has even not issued a cease and desist notice after becoming aware of the use of the mark by the Defendant purportedly in 2008, let alone filing a Suit for injunction at that time.

87. Dr. Saraf has submitted that the ratio laid down in Unichem Laboratories (Supra) and Essel Propack (Supra) have not been overruled by the decision of the Division Bench in Torrent Pharmaceuticals (Supra). These decisions have not even cited or referred to in the judgment. Thus, there is no dilution of these judgments. The important point of distinction is that whilst in Unichem Laboratories (Supra) and Essel Propack (Supra), there was a delay between the date of knowledge of the Defendant's mark and filing of the Suit, which was sought to be explained by suppressing facts and taking a dishonest stand, in Torrent Pharmaceuticals (Supra), there was absolutely no delay between the knowledge of the Defendant's use and filing of the Suit. Further, the Defendant had adopted the mark after the Plaintiff's 922-nmcd-516-2017.doc registration, with complete open eyes with respect to the existing proprietary rights of the Plaintiffs in the marks.