In The National Sewing Thread Co. Ltd. carrying on business in Chidambaram v. James Chadwick and Bros. Ltd. a company registered under the English Companies Act by its duly constituted Attorney, Harvy Godfrey, Bombay, AIR (35) 1948 Madras 481 while considering the aspect of passing off action, the Madras High Court observed that an action against the person concerned is maintainable if there is a reasonable probability and not mere possibility of deception which may be by sound or sight. In the case in hand, from the averments made by the appellants and the similarity of trade name being used by the respondents, prima facie, it seems that there is a reasonable probability of deception and, therefore, the ratio laid down in the aforesaid case is also not applicable to the facts of the present case.
The Apex Court in AIR 1953 SC 357, National Sewing Thread Co. Ltd., Chidambaram v. James Chadwick and Bros. Ltd., had occasion to consider Clause 44 of Letters Patent of Calcutta High Court. The Clause 44 of the Letters Patent of Calcutta High Court are similar to Clause 35 of our Letters Patent. The Apex Court in the aforesaid judgment had held that Letters Patent arc subject to legislative power of the appropriate legislature. Relevant portion of Paragraphs 12 and 13 of the aforesaid judgment are extracted below :-