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12. Thereafter Mukesh Khadaria [Defendant No.3 in CS (OS) No.910/2009], filed an application (IA No.7600 of 2009) under Order XXXIX Rule 4 CPC seeking vacation of the ex parte ad interim injunction. Likewise M/s Shri Ram Plaster Industries (Defendant No.3) and Bajarang Lal Pareek (Defendant No.2) filed IA 8023/2009 under Order XXXIX Rule 4 CPC in CS (OS) No.1035/2009 seeking vacation of the ex parte ad interim injunction.

13. By the order dated 16th July 2009 the Plaintiff was permitted to amend CS (OS) No.910/2009 to implead M/s Laxami Plaster Industries as Defendant No.4 since it was also a manufacturer of the goods bearing the infringing mark SHRIRAM. IA No. 7599/2009 was accordingly allowed and the amended memo of parties was taken on record.

25. The defence of the Defendants based on the dissimilarities in the marks and logo adopted by them is prima facie without merit. The other defence is that the Plaintiff has suppressed material facts by not mentioning in the plaint that cease and desist notices were issued to each of them by the Plaintiff in 2007. It is stated that inasmuch as the Plaintiff was aware that the Defendants have been using the infringing marks and logos since 2007, the suits must fail on the grounds of laches and acquiescence. The fact remains that neither of the Defendants thought it fit to reply to the said cease and desist notice of the Plaintiff. Therefore, the Defendants cannot seek to take advantage of the fact that the Plaintiff was aware of the infringement since 2007. In the circumstances, this Court is not able to come to the conclusion that either this fact was a material fact, for the suppression of which the Plaintiff ought to be denied interim injunction or that even if the fact of issuance of such cease and desist notices had been disclosed in the plaint, the Court may have been persuaded not to grant an interim injunction. What should weigh with the Court is the nature of the suppression pleaded in the case. In the considered view of this Court, the non-disclosure by the Plaintiff of the fact of it having issued cease and desist notices to the Defendants does not, in the facts and circumstances of the present case, make a difference to the decision to grant the Plaintiff an ad interim injunction. In that view of the matter, this Court is not persuaded to accept the arguments of the Defendants based on the judgments in Seemax Construction (P) Ltd. v. State Bank of India AIR 1992 Delhi 197; The Fairdeal Corporation (Pvt.) Ltd. v. Vijay Pharmaceuticals (1985 PTC 80) and Om Prakash Gupta v. Parveen Kumar 2000 PTC 326.

"If a party, for no apparent or valid reason, adopts, with or without modifications, a mark belonging to another, whether registered or not, it will be difficult for that party to avoid an order of injunction because the Court may rightly assume that such adoption of the mark by the party was not an honest one. The Court would be justified in concluding that the defendant, in such an action, wanted to cash in on the plaintiffs name and reputation and that was the sole, primary or the real motive of the defendant adopting such a mark. Even if, in such a case, there may be an inordinate delay on the part of the plaintiff in bringing a suit for injunction, the application of the plaintiff for an interim injunction cannot be dismissed on the ground that the defendant has been using the mark for a number of years. Dealing with this aspect Harry D. Nims in his "The Law of Unfair Competition and Trade Marks", Fourth Edition, Volume Two at page 1282 noted as follows:

33. For all of the aforementioned reasons, this Court is satisfied that the Plaintiff has made out a case for continuance of the ad interim injunction during the pendency of the suits. Accordingly, the interim order dated 19th May 2009 passed in IA No. 6694/2009 in CS (OS) 910/2009 and the interim order dated 28th May 2009 passed in IA No. 7417/2009 in CS (OS) No.1035/2009 are made absolute. IAs 6694 and 7417 of 2009 stand disposed of accordingly. IA No.7600/2009 in CS (OS) No. 910 of 2009 and IA No. 8023/2009 in CS (OS) No.1035/2009 are accordingly dismissed. Each of the Defendants in the two suits will pay to the Plaintiff costs of Rs.10,000 within a period of two weeks.