Vikramajit. Sen, J.

1. This is a suit for permanent injunction, infringement of copy right and trade mark, passing off and rendition of accounts. Summons were ordered to be issued to the Defendants on 14.8.1998 for the next date of hearing which was 14.10.1998. On 14.10.1998 the matter was adjourned to 22.1.1999. On 22.1.1999 a request for time to file Written Statement and Reply was made and an adjournment was granted for this purpose. On 18.3.1999, which was the next date of hearing, yet on another request further time of four weeks for filing the Written Statement was granted. When the matter came up on 21.7.1999 before Joint Registrar(O) it was noted that the Written Statement had not been filed and hence the matter was placed before Court. On 6.8.1999 there was no appearance on behalf of Defendants. In these circumstances, Order 8, Rule 10 was relied upon by the learned Counsel for the Plaintiffs and it was pressed before me that the Court should pronounce judgment against the Defendants. Arguments were heard in the suit and judgment was reserved.

2. Order 8, Rule 10 reads as under:

Order 8, Rule 10. When any party from whom a Written Statement is required under Rule 1 or Rule 9 fails to present the same within time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, decree shall be drawn up.

2.1. These provisions were altered by the Amendment Act, 1976, and the word shall replaced the word may in this rule. Even though the use of the word shall appears to make it mandatory that a judgment should be pronounced, this mandate has been watered down by the subsequent part of the sentence which protects the discretion of the Court inasmuch as it can "make such order in relation to the suit as it thinks fit

I had, therefore, not pronounced the judgment on 6.8.1999.

3. Keeping in perspective the fact that at least four opportunities for filing Written. Statement have not been availed of by the Defendants. I feel this is a fit case for invoking the provisions of Order 8, Rule 10. However, since no defence has come forward, it would be, to my mind, the duty of the Court to consider the correctness of the Plaintiffs case. For this reason the plaint as well as documents filed alongwith it were perused and arguments were heard on behalf of Plaintiffs.

4. The Plaintiff No. 1 is engaged in the manufacture of rubber chappals and another kinds of footwears and since 10.10.1990 the Plaintiff No. 2 is marketing, selling and making publicity of these products manufactured by Plaintiff No. 1. Trade mark RELAXO is continuously and extensively in use by the Plaintiff No. 1 since 1968. In 1976 the word RELAXO was drawn up in an artistic manner and in a unique and distinctive style as contemplated by Section 2(c) of the Copyright Act, 1957. The three artistic works related to the word RELAXO have been registered under the Copyright Act, 1957 under Registration Nos. A16964/1977, A42720/1983 and A42721/1983. Copies of the extracts in the register of Copyrights have been filed.

5. In order to protect the proprietary rights in the trade mark RELAXO registration was carried out under the Trade and Merchandise Marks Act, 1958 and copies of the relevant orders have also been filed alongwith the suit.

6. It has been averred in the plaint that due to excellent quality of the Plaintiffs products the said trade name RELAXO have acquired in all the markets of the country a valuable reputation. The publicity expenses pertaining to the trade mark RELAXO during the period 1978 to 1998 is stated to exceed Rs. 16 crores. The sales for the period 1976 to 1998 exceeds Rs. 312 cores.

7. It has further been averred in the plaint, and this stands undisputed, that the Defendants have been selling rubber chappals bearing identical trade mark RELAXO in the same style of writing as that adopted by the Plaintiff No. 1. Photographs of the Plaintiffs chappal and the Defendants chappal are on the record and support the Plaintiffs case. It is obvious that the Defendants intention was to pass of his spurious goods as the genuine products of the Plaintiff. It has been asserted, in my view correctly, that the Plaintiffs reputation cannot be estimated in terms of money and that, therefore, an injunction is the only appropriate remedy available to the Plaintiffs to protect its legal and statutory rights. It is averred that the Plaintiffs estimate that by the illegal trade activities the Defendants might have earned the profits to the tune of Rs. 5 1acs, although this could only be definitely ascertained on the Defendants rendition of accounts.

8. In these circumstances, in my view, this is a fit case for passing a decree in favour of the Plaintiffs permanently injuncting and restraining the Defendants through their proprietor/partners, servants, agents, representatives, dealers and others acting for and on its behalf from infringing or reproducing copies of artistic works RELAXO in respect of which the Plaintiffs are the owners and/or to do anything, the exclusive right to do which is conferred upon the Plaintiffs as owners of the said copyright. The Defendants through their proprietor/partners, servants, agents, representatives, dealers and others acting for and on its behalf are further restrained from manufacturing, selling; offering for sale, advertising, directly or indirectly dealing in rubber chappals or any other footwear under the trade mark RELAXO or any other trade mark which may be deceptively similar to the Plaintiffs registered trade mark RELAXO.

9. The Plaintiffs have sought rendition of accounts to ascertain the profits earned by the Defendants, which had been tentatively ascertained as Rs. 5 lacs so that a decree can be passed for the amount so found due on the basis of sales. No defence of the Defendants is forthcoming in these proceedings. I think it appropriate to decree a sum of Rs. 3 lacs as damages. For this reason the prayer for rendition of accounts is disallowed. The Plaintiffs will, however, be entitled to all the costs incurred in these proceedings.

10. After payment of additional Court fee a decree be drawn up accordingly.

11. Suit & I.A. stand disposed of in the above terms.