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from the market and are sold back to the different brewers for the purpose of recycling the bottles. The bottles are sold by the junk dealers to the brewers with or without the labels of the different companies, who in the process of recycling ensure that all previous labels are carefully removed and labels of respective companies are pasted prominently on the face of the bottles during the refilling process. The refilled bottles come out into the market with fresh labels of respective companies which are easily distinguishable, one from another and are sold under different brand names owned by different KPP -19- companies. It is most respectfully submitted that although every possible care and precaution is taken by the defendant to ensure that only the bottles bearing the label and brand name of the defendant are taken up in the recycling process, the possibility of a minuscule minority of bottles of the plaintiff or any other company having similar shape and size of the bottle sneaking into the process of recycling by the defendat on account of human error. I say that the Plaintiff before this Hon'ble Court is also following the same practice. I therefore say that the present suit before this Hon'ble Court is nothing but a sham and an attempt to snatch an order by suppressing material facts from this Hon'ble Court and basically attempt to mislead this Hon'ble Court from the core facts in issue. I say that on this ground alone the present suit before this Hon'ble Court deserves to be dismissed with costs. I crave leave to refer to and rely upon the papers and proceedings in the suit filed by the present Plaintiff in Raisen as and when produced."

"inadvertently" and there is a possibility of human error in using somebody else's bottles for one's product. The aforesaid admission in paragraph 5 and paragraph 16 of the affidavit-in-reply of the Defendant, clearly shows that there is no such practice to use somebody else's bottles bearing their trade mark.

28. As regards the Defendant's submission that the balance of convenience is in favour of the Defendant, the Defendant has admitted that inadvertently and because of a human error they have used the bottles bearing the Plaintiff's registered trade mark. This Court therefore enquired from the learned Senior Advocate appearing for the Defendant whether the Defendant is KPP -22- willing to make a statement that the Defendant will be careful in future and will not use bottles bearing the Plaintiff's registered trade mark. The Learned Advocate appearing for the Defendant refused to make such a statement. The Learned Senior Advocate appearing for the Defendant was not willing to even seek instructions before refusing to make such a statement before the Court. He tried to justify his client's conduct by submitting that according to him, his clients are not guilty of infringement thereby meaning that the Defendant intends to continue using the bottles with the Plaintiff's trade mark. On the one hand the Defendant admits that its use of beer bottles bearing the Plaintiff's trade mark was a mistake, but yet on the other hand it still wants to continue with the said use. Such conduct on the part of the Defendant has to be termed "dishonest". Therefore I am in agreement with the submission of the Plaintiff that in view of such conduct on part of the Defendant, it is not entitled to raise any plea in equity such as balance of convenience. In fact, in my view, the balance of convenience is in favour of the Plaintiff who has prayed that the Defendant should not infringe upon its trade mark by using beer bottles for sale of beer on which the Plaintiff's trade mark is embossed.