S.J. Kathawalla, J.

1. In the above Notice of Motion, an urgent ad-interim ex-parte order was passed on December 18, 2012 in terms of prayer clause (a) of the Notice of Motion which reads thus:

"(a) that pending the hearing and final disposal of the suit, the Defendant by itself, its directors, servants, agents, stockists, distributors and dealers, be restrained by an order and permanent injunction of this Honble Court from infringing the Plaintiffs registered trade mark SABMiller India / SABMILLER INDIA bearing No. 1787321 in classes 21 and 32 by using bottles embossed with the trade mark SABMILLER INDIA or by the use of the trade mark SABMiller India / SABMILLER INDIA or any other trade mark deceptively similar to the Plaintiffs registered trade mark SABMiller India / SABMILLER INDIA upon or in relation to beer or any other goods for which the Plaintiffs said trade mark No. 1787321 has been registered or in any other manner whatsoever;"

2. The Learned Senior Advocate appearing for the Defendant has at the outset clarified, that though the Defendant has in its Affidavit-in-Reply stated that it does not admit that this Court has jurisdiction to try and dispose of the present suit, the Defendant is giving up its said contention and will proceed with the hearing of the Notice of Motion as well as the suit on the basis that this Court has jurisdiction to try and entertain the present suit.

3. Briefly set out, the relevant facts are as under:

4. On 19th February 2009, the Plaintiff applied for registration of its series trade mark "SABMiller India - SABMILLER INDIA" under the Trade Marks Act, 1999 ("the Act") under Application No. 1787321 in Class-21 in respect of glass bottles and in Class-32 in respect of beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks, fruit juices, syrups and other preparations for making beverages.

5. On 19th June 2009, the Plaintiff conceived a design to be applied to its bottles to be used for selling beer and applied for registration of the said design under the Designs Act, 2000, in Class 09-01 which design was registered on 15th January 2010 under No. 223479. In the meantime, on 22nd June 2009 the Plaintiff changed its name from SABMiller India Limited to SKOL Breweries Ltd.

6. The Plaintiff sometime after January 2010, introduced in the Indian Market its beer bottles on which the design registered under No. 223479 was applied and which was embossed with its said trade mark SABMILLER INDIA.

7. In the second week of January 2012, the Plaintiff came to learn that the Defendant is manufacturing, distributing and selling its beer bottles, which not only had the identical design as that of the registered design on the Plaintiffs bottles but which were also embossed with the Plaintiffs said trade mark SABMILLER INDIA. The Plaintiff therefore on 3rd February 2012 instituted a suit being Suit No. 5A of 2012 against the Defendant before the District Court of Raisen, Madhya Pradesh, inter alia, for permanent injunction restraining the Defendant from infringing the Plaintiffs registered Design No. 223479 and passing off its products as those of the Plaintiffs products, by use of the said trade mark SABMILLER / SABMILLER INDIA and for other consequential reliefs. The District Court, Raisen by its order dated 3 rd February 2012 restrained the Defendant from removing from its factory, its bottles to which the Plaintiffs design No. 223479 was applied and which were bearing the Plaintiffs trade mark SABMILLER INDIA, till the next date of hearing. The said ad-interim order dated 3rd February 2012 was extended from time to time. On 3rd April 2012, the Defendant filed its written statement wherein it raised a defence of invalidity of registration of the Plaintiffs said design under Section 19 of the Designs Act, 2000. The said Suit No. 5A of 2012 was transferred to the Ilird Additional District Judge,who by his order dated 3rd July 2012 dismissed the Plaintiffs application for interim reliefs.

8. The Plaintiff thereafter filed an Appeal against the said order dated 3rd July 2012 before the Honble High Court of Madhya Pradesh at Jabalpur being Misc. Appeal No. 1946/2012 along with an application seeking stay of the impugned order dated 3rd July 2012, passed by the Ilird Additional District Judge and temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908. The Madhya Pradesh High Court at Jabalpur vide its order dated 9th August 2012 stayed the operation of the said order dated 3rd July 2012 passed by the Ilird Additional District Judge and restrained the Defendant from using bottles bearing design No. 223479 having embossed on it SABMILLER/ SABMILLER INDIA till the next date of listing i.e. 21st August 2012. The said order of injunction and stay was extended from time to time and was in operation till 18th December 2012.

9. The Plaintiff thereafter filed an application under Section 22 (4) of the Designs Act, 2000, before the District Court, Raisen for transfer of Suit No. 5A of 2012 to the Madhya Pradesh High Court as the Defendant had challenged the validity of Plaintiffs registered design. The said application however was dismissed by the District Court on 22nd November 2012. The Plaintiff has challenged the said order dated 22nd November 2012 in Writ Petition No. 227 of 2012 filed before the High Court of Madhya Pradesh at Jabalpur, which is pending.

10. On 5th December 2012, the Plaintiffs series trade mark application under No. 1787321 in Classes 21 and 32 was registered. The mark was registered as of 19th February 2009. The Plaintiff thereafter filed the suit for infringement of its registered trade mark "SABMiller India - SABMILLER INDIA" registered under No. 1787321 in respect of beer, mineral and aerated water falling under Class-32 and glass bottles falling under class 21 of the Schedule to the Trade Mark Rules, 2002.

11. As set out hereinabove, urgent ex-parte ad-interim relief in terms of prayer clause (a) in the Notice of Motion restraining the Defendant from infringing the Plaintiffs registered trade mark "SABMiller India - SABMILLER INDIA" bearing No. 1787321 in Classes 21 and 32 by using bottles embossed with the trade mark SABMILLER India was passed by this Court on 18 th December 2012. Initially the order was to remain in operation upto and including 16th January 2013 and the Notice of Motion was directed to be listed on 14th January 2013 for final hearing. On 14th January 2013, the ad-interim order was extended until further orders.

12. In the meantime the Misc. Appeal No. 1946 of 2012 filed by the Plaintiff in the High Court of Madhya Pradesh at Jabalpur was extensively heard on 18th December 2012 and reserved for orders. By an order dated 11th January 2013, the High Court of Madhya Pradesh at Jabalpur dismissed the Plaintiffs Misc. Appeal No. 1946 of 2012.

13. The affidavits of the parties in the above Notice of Motion have been filed and the Notice of Motion is today taken up for final hearing.

14. Dr. Tulzapurkar, the Learned Senior Advocate appearing on behalf of the Plaintiff, has first drawn my attention to the copy of the certificate of registration of the said series trade mark "SABMiller India - SABMILLER INDIA" bearing Registration No. 1787321 in classes 21 and 32, annexed as Exhibit-B to the Plaint. He has submitted that the Defendant has adopted an identical mark as can be seen from the photographs of the Defendants bottles at Exhibit-D (pages 23 to 25) to the Plaint. The Learned Senior Advocate appearing for the Plaintiff has submitted that the use of the Plaintiffs registered trade mark by the Defendant amounted to infringing of the Plaintiffs registered trade mark in view of the provisions of Section 29 (2) (c ) of the Act, and in view of the identity of the two marks and identity of the goods, the Court shall presume that the use by the Defendant of the impugned trade mark is in order to to cause confusion in the minds of the public in view of the provisions of Section 29 (3) of the Act.

15. The Learned Senior Advocate appearing for the Defendant has submitted that the Defendant while filling its beer has used recycled bottles of the Plaintiff bearing the Plaintiffs mark and the same was done "inadvertently" or as an "error" since the recycled bottles are used in this trade. He has submitted that in fact the Plaintiff has also used recycled bottles and has sold their beer in bottles bearing the trade mark "Kingfisher". It is submitted that since the Defendant is using its own label bearing a different mark as also the name of the Defendant, the question of any infringement or confusion being created or likely to be created in the minds of consumers does not arise. The Learned Senior Advocate appearing for the Defendant has further submitted that the suit is barred by the principles of res judicata, inasmuch as there is also a suit filed for infringing of design and passing off by the Plaintiff in the Madhya Pradesh High Court at Jabalpur and the Madhya Pradesh High Court at Jabalpur has in Misc. Appeal No. 1946 of 2012 held on 11th January, 2013 that there is no possibility of confusion by merely using recycled bottles by the Defendant, bearing the Plaintiffs mark "SABMiller India - SABMILLER INDIA".

16. It is further submitted on behalf of the Defendant that the Plaintiff is guilty of suppression of the fact that the Plaintiff has used bottles bearing the trade mark "Kingfisher" embossed on them and therefore the Plaintiff is not entitled to any relief. In support of this submission, the Defendant has relied on the decisions in (i) Agarwal Industries Ltd. v. Golden Oil Industries (P) Ltd. AIR 1999 Bom. 362 [LQ/BomHC/1999/389] ; (ii) Ravi Kamal Bali v. Kala Tech and Ors. 2008 (5) Bom CR 138 : 2008 (38) PTC 435 [Bom] [LQ/BomHC/2008/1071] and (iii) J.K. Sons v. Parksons Games and Sports and Ketan Mehta, Sole Proprietor of K.D. Corporation 2011 (3) ALL MR 346. The Learned Senior Advocate appearing for the Defendant has further submitted that the Defendant is entitled to continue using the registered trade mark of the Plaintiff because such use is protected by the provisions of Section 30 (1) of the Act and also in view of the provisions of Section 30 (2) of the Act. He has further submitted that a recycled bottle is available for approximately Rs. 4/- from the Kabadis whereas a new bottle would cost Rs. 11/- to Rs. 16/-. He has therefore submitted that the balance of convenience is in favour of the Defendant. It is therefore submitted on behalf of the Defendant that the Notice of Motion be dismissed.

17. In rejoinder, the Learned Senior Advocate appearing for the Plaintiff, has reiterated that the use of the Plaintiffs registered trade mark by the Defendant amounts to infringement of the Plaintiffs registered trade mark in view of the provisions of Section 29 (2) (c ) of the Act and in view of the identity of the two marks and identity of the goods, the Court shall presume that the use by the Defendant of the impugned trade mark is likely to cause confusion in the minds of the public, in light of the provisions of Section 29 (3) of the Act. Relying on the decision of the Honble Supreme Court in the case of Ruston & Hornsby Ltd. v. Zamindara Engg. Co. 1969 (2) SCC 727 [LQ/SC/1969/330] : PTC (Suppl)(1) 175(SC) and Kaviraj Pandit Durga dutt Ahsarma v. Navaratna Pharmaceutical Laboratories AIR 1965 SC 980 [LQ/SC/1964/275] : PTC (Suppl)(2) 680(SC), Dr. Tulzapurkar submitted that the addition of the words or use of other devices or use of the label by the Defendant in addition to the use of the mark which is identical to the Plaintiffs registered trade mark is not a defense to an action for infringement. He further submitted that the suit at Madhya Pradesh is filed by the Plaintiff against the Defendant for infringement of the Plaintiffs design and for passing off and not for infringement of the registered trade mark. It is submitted that in the case of an infringement of a registered trade mark, no further enquiry is called for to find out whether there is any confusion. Thus the finding of the Madhya Pradesh High Court in a passing off action cannot act as res judicata as regards the present suit which is filed on an independent cause of action viz. infringement of the registered trade mark of the Plaintiff.

18. Dr. Tulzapurkar further submitted on behalf of the Plaintiff that there is no suppression of any fact whatsoever by the Plaintiff. He submitted that the Defendants contention that the Plaintiff has suppressed the fact that the Plaintiff has used bottles bearing the trade mark Kingfisher embossed on them has no relevance. Firstly, it is not a rule of pleading to mention the defence and then give an answer. Secondly, the said fact is not an admitted fact. At the hearing of the Appeal before the High Court of Madhya Pradesh, for the first time a bottle containing the Plaintiffs goods but embossed with Kingfisher brand was produced. The Plaintiff had no opportunity to deal with the said allegation. However the Plaintiff has now dealt with the allegation regarding use of Kingfisher bottles by it as follows:

"8. deny that the bottles bearing the trade mark label HAYWARDS 5000 embossed with the mark KINGFISHER are the Plaintiffs bottles as alleged or at all. I say and submit that going by the past conduct of the Defendant, the possibility of the Defendant stage-managing the bottle bearing the trade mark KINGFISHER embossed thereon and having the label of HAYWARDS 5000 on it to make it appear that the Plaintiff is using the said bottle in respect of its HAYWARD 5000 beer cannot be ruled out. Without prejudice to the above and in the alternative I say and submit that most of the brewers including the UB Group as also the Plaintiff and/or their predecessors buy their bottles from either the Hindusthan National Glass and Industries Ltd. (HNGI) or AGI glaspac (AGI) since past many years. Further the bottle bearing the mark KINGFISHER embossed on it is almost identical and/or closely similar to the generic bottle which was used by the Plaintiff prior to introducing its new bottle in the year 2010 and both the said bottles were manufactured by the aforesaid bottle manufacturers. It is pertinent to note that the height, and size of the KINGFISHER bottle and that of generic bottle used by most of the brewers is same. It was therefore possible that HNGI or AGI while sending the generic bottles to the Plaintiff might have sent one or two bottles embossed with the mark KINGFISHER. Further, prior to introducing its new bottles the Plaintiff was also using recycled generic bottles purchased from dealers of used generic bottles and at that time one or two KINGFISHER bottles might have been used by the Plaintiff. At the said time due to their similar size and height, the Plaintiffs old beer filling machines might have filled in beer in KINGFISHER bottle along with generic bottles. However, now due to difference in height of the Plaintiffs bottle and of the generic bottle or the KINGFISHER bottle, it is not possible to accidently use generic bottle or KINGFISHER bottle in place of the Plaintiffs bottle to fill in beer by the Plaintiffs machines or to accidently use the Plaintiffs bottle in place of generic bottle to fill in beer by the machines used to fill beer in generic bottles:

It is also submitted on behalf of the Plaintiff that it is not the case of the Defendant that there is an honest trade practice to use recycled bottles bearing brands of different manufacturers of such bottles. On the contrary, the averments in the affidavit-in-reply show that the practice is only to use ones own old bottles and not the bottles of other manufacturers. It is therefore submitted on behalf of the Plaintiff that there is no question of suppression of any fact and the judgments relied upon by the Defendant are totally inapplicable.

19. It is further submitted on behalf of the Plaintiff that the Defendant is wrong in contending that they are entitled to use the registered trade mark of the Plaintiff because such use is protected by the provisions of Section 30 (1) of the Act. The Defendant is also wrong in contending that the use of the Plaintiffs registered trade mark does not amount to infringement in view of the provisions of Section 30 (2) of the Act and that the decision of the Supreme Court in Durga Dutts case (supra) is no longer a valid view of the said provision.

20. It is further submitted on behalf of the Plaintiff that the balance of convenience is not in favour of the Defendant. Despite the Defendant admitting that its user was a mistake, the Defendant wants to continue the action of infringing the Plaintiffs mark which amounts to dishonesty on the part of the Defendant, who is not entitled to raise any plea in equity such as balance of convenience. It is submitted that as set out in paragraph 9 of the Plaint, the Defendant is a habitual infringer. The Defendant has infringed the Plaintiffs registered trade mark HAYWARDS 5000 by using the trade mark POWER 5000 in respect of its beer. The Plaintiff has therefore filed a suit being Suit No. 603 of 2007 against the Defendant in this Court for permanent injunction restraining the Defendant from using the trade mark POWER 5000 or any other trade mark containing numeral 5000 or any other trade mark deceptively similar to the Plaintiffs said registered trade mark and for other reliefs. By an order dated 5th September 2011, this Court has granted interim injunction restraining the Defendant from using the impugned trade mark POWER 5000. The said order was stayed till 31st October 2011 and the Defendant was allowed to dispose of its existing stock by 31st March 2012. The said order dated 5th September 2011, therefore came into force on 1st November 2011. The Defendant has preferred an Appeal from the said order, which is pending. However, operation of the said order dated 5th September 2011 has not been stayed and it continues to remain in force. Despite the said injunction order dated 5th September 2011, the Defendant continued manufacturing, brewing and bottling beer bearing the impugned trade mark POWER 5000. The Plaintiff has therefore filed a Contempt Petition No. 41 of 2012 against the Defendant, which is pending. It is therefore submitted on behalf of the Plaintiff that the above Notice of Motion be made absolute.

21. I have considered the submissions advanced by the Learned Senior Advocates appearing for the Plaintiff as well as the Defendant. As regards the submission advanced on behalf of the Defendant that the present suit is barred by the principles of res judicata, inasmuch as there is already a suit filed for infringement of design and passing off by the Plaintiff in the Madhya Pradesh High Court, wherein the Madhya Pradesh High Court held that there is no possibility of confusion, admittedly the suit filed before the High Court of Madhya Pradesh is for infringement of design and passing off and is therefore different from the present suit which is an action for infringement of the Plaintiffs registered trademark. The cause of action in the present suit is therefore independent of the cause of action on which the suit before the High Court of Madhya Pradesh is based. In fact, when the earlier suit at Madhya Pradesh was filed, the Plaintiffs mark was admittedly not registered. In the said suit, a specific reference was made that the Plaintiff has applied for registration of the trade mark SUBMILLER INDIA and that the said application is pending and that after the mark is registered, the Plaintiff will also make a claim for infringement of the same. In paragraph 18 in that suit, the Plaintiff has made reference to the application for registration and has also filed a copy of application along with the Plaint. The Plaintiff has made a specific reference to the said application and has stated in paragraph 18 of the said suit that "The Plaintiff reserves its right to amend the present proceeding to that of suit for infringement upon receipt of the registration certificate for the said trade mark." The Plaintiff is always at liberty to file a fresh suit based on a fresh cause of action viz. infringement of the trade mark after the trade mark has been registered, which is in fact done by the Plaintiff through the present suit. The cause of action in the present suit arose much after the suit was filed before the High Court of Madhya Pradesh for infringement of design and passing off. Since the cause of action pleaded in the earlier suit is different from the cause of action for infringement of a registered trade mark, pleaded in the present suit, there is no question of the present suit being barred by the principles of res judicata or on any other principle.

22. As regards the Defendants contention that the High Court of Madhya Pradesh has held that there is no possibility of confusion, it is clear that the High Court of Madhya Pradesh has expressed its view whilst determining the Plaintiffs claim that the Defendants are passing off their goods/products as that of the Plaintiff. The said finding of the High Court of Madhya Pradesh will not be of any assistance to the Defendant in the present suit which is for infringement of the Plaintiffs registered trade mark. Section 29 (2) (c) and (3) of the Act are relevant and reproduced hereunder:

"29. Infringement of registered trade marks.-

(1)..........

(2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of --

(a) ...................

(b) ...................

(c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.

(3) In any case falling under clause (c ) of sub-section (2), the Court shall presume that it is likely to cause confusion on the part of the public "

23. In the instant case, in view of the identity of the two marks and identity of goods, the statute requires that the Court shall presume that the use by the Defendant of the impugned trade mark is likely to cause confusion on the part of the public. Therefore, in the present suit, under Section 29 (2) and (3) of the Act, a legal presumption is required to be raised by the Court, that having regard to the identity of the mark and identity of the goods, it is likely to cause confusion on the part of the public. In any event, in view of the decision of the Supreme Court in Ruston & Hornsby Ltd. (supra), no further enquiry is required to be called for, to find out whether there is in fact any confusion. In view thereof, the finding of the Madhya Pradesh High Court in a passing off action, cannot act as res judicata as regards the present suit and the said finding has no relevance to the issue involved in the present suit.

24. The Defendants contention that the Defendant is using its own label bearing a different mark as also the name of the Defendant is no defence to the action for infringement. In this connection, reference may be made to the decision of the Honble Supreme Court in the case of Ruston & Hornsby Ltd. (supra). Paragraphs 3, 7 and 8 of the said decision are relevant and reproduced hereunder.

"3. The distinction between an infringement action and a passing off action is important. Apart from the question as to the nature of trade mark the issue in an infringement action is quite different from the issue in a passing off action. In a passing off action the issue is as follows:

"Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiffs goods "

But in an infringement action the issue is as follows:

"Is the defendant using a mark which is the same as or which is a colourable imitation of the plaintiffs registered trade mark "

7. In an action for infringement where the defendants trade mark is identical with the plaintiffs mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using not the exact mark on the Register, but something similar to it, the test of infringement is the same as in an action for passing off. In other words, the test as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing off actions.

8. In the present case the High Court has found that there is a deceptive resemblance between the word "RUSTON" and the word "RUSTAM" and therefore the use of the bare word "RUSTAM constituted infringement of the plaintiffs trade mark "RUSTON". The respondent has not brought an appeal against the judgment of the High Court on this point and it is, therefore, not open to him to challenge that finding. If the respondents trade mark is deceptively similar to that of the appellant the fact that the word INDIA is added to the respondents trade mark is of no consequence and the appellant is entitled to succeed in its action for infringement of its trade mark".

In the case of Kaviraj Pandit Durga Dutt Sharma (supra), the Honble Supreme Court has in paragraph 28 of the Judgment at page 989 while noting the difference between an action for infringement and action for passing off, has observed as follows:

"28 In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendants mark is likely to deceive, but where the similarity between the Plaintiffs and the defendants mark is so close either visually, phonetically or otherwise and the court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiffs rights are violated. Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get-up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff."

The Defendant therefore cannot be heard to say that since the Defendant, in addition to the trade mark `SABMILLER INDIA, is using its own label bearing a different mark as also the name of the Defendant, the question of any infringement or confusion being created or likely to be created in the minds of consumers does not arise.

25. As regards the submission on behalf of the Defendant that the Plaintiff has suppressed the fact that the Plaintiff has itself used bottles bearing the trade mark Kingfisher embossed on them, the Plaintiff has, as recorded in paragraph 18 hereinabove, given a detailed explanation qua such use. The Plaintiff is also correct in its submission that it is not the case of the Defendant that there is an honest trade practice to use recycled bottles bearing brands of different manufacturers of such bottles which the Plaintiff has not disclosed. On the contrary, the following averments in the affidavit-in-reply of the Defendant shows that the practice is only to use ones own old bottles and not the bottles of other manufacturers. In paragraph 5 at page 11 of the affidavit-in-reply, the Defendant has pleaded as follows:

"5. I say that the practice of using recycled bottle is an age old practice in the beer trade. It is submitted that the plaintiff has himself stated in the suit by him before the Honble District Judge Raisen that until recent past the brewers in India sold their beer in a common bottle. It is submitted that used bottles of beer are collected by the junk dealers "Kabadis" 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 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 Honble Court is also following the same practice. I therefore say that the present suit before this Honble Court is nothing but a sham and an attempt to snatch an order by suppressing material facts from this Honble Court and basically attempt to mislead this Honble Court from the core facts in issue. I say that on this ground alone the present suit before this Honble 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."

I am therefore satisfied that the Plaintiff has not suppressed any facts from this Court and the judgments relied upon by the Defendant lend no assistance to them.

26. As regards the Defendants contention that it is entitled to continue the use of the registered trade mark of the Plaintiff because such use is protected by the provisions of Section 30 (1) of the Act, as correctly submitted on behalf of the Plaintiff, the said Section is not applicable to the present case. Again, it is not even the Defendants case that there is any practice in industrial or commercial matters to use other manufacturers bottles bearing their marks. The only allegation made in the affidavit-in-reply is that there is practice of using ones old bottles. As regards the use of someone elses bottles with that persons trade mark, the Defendant has admitted that it has used the Plaintiffs bottle "inadvertently" and there is a possibility of human error in using somebody elses bottles for ones 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 elses bottles bearing their trade mark. Hence the said defense is not available to the Defendant. Further, Section 30 (1) of the Act provides that the use of a registered trade mark by any person has to be for identifying the goods of the registered proprietor. This is not the case here. The Defendant is using the Plaintiffs registered trade mark in respect of its own products and is identifying the goods as its own goods. Hence, the said Section is not applicable. The provisions of Section 30 (1) protects the use of a registered trade mark in comparative advertisement i.e. when the Defendant uses the Plaintiffs registered trade mark to indicate the Plaintiffs goods and not as the Defendants goods, but to show the difference between the goods of the Plaintiff and the goods of the Defendant. For example, if Company `X makes a comparison between `X brand Cars and other cars manufactured and sold under brand names `A, `B, and `C, such use by `X of brand names `A, `B and `C will not amount to infringement of the registered trade marks of `A, `B, `C. Those marks are used to indicate the goods of such respective owners of the trade mark and to draw a comparison between them and brand `X car. The provisions of Section 30 (1) are therefore not applicable to the present case.

27. As regards the Defendants contention that the Defendants use of the Plaintiffs registered trade mark does not amount to infringement in view of the provisions of Section 30 (2) and that the decision of the Honble Supreme Court in the case of Durga Dutt (supra) is no longer valid in view of the said provision, are untenable. The provisions of Section 30 (2) are applicable when the Defendant uses the Plaintiffs registered trade mark not as a trade mark but to show the character, kind or quality of the Defendants goods. For example, if a particular product is free of ingredient `X, then if the trade mark is registered as "X free", the use by any other person of the words `"X free" to describe his goods as one not containing the ingredient `X, will not amount to an infringement since he is not using the word `"X free" as a trade mark but to indicate the quality of the goods or the characteristic of the goods when he says his product is `"X free". It is submitted that when the Defendant uses the registered trade mark of the Plaintiff on the bottles admittedly containing the Defendants beer and puts up the same for sale, it is using the Plaintiffs mark as a trade mark and there is no question of such use being protected under Section 30 (2) of the Act.

28. As regards the Defendants 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 Plaintiffs registered trade mark. This Court therefore enquired from the learned Senior Advocate appearing for the Defendant whether the Defendant is willing to make a statement that the Defendant will be careful in future and will not use bottles bearing the Plaintiffs 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 clients 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 Plaintiffs trade mark. On the one hand the Defendant admits that its use of beer bottles bearing the Plaintiffs 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 Plaintiffs trade mark is embossed.

29. In the circumstances I am of the view that the Defendant is guilty of infringing the Plaintiffs trade mark SABMiller India/SABMILLER INDIA . The ad-interim order passed on December 18, 2012 is therefore confirmed until the hearing and final disposal of the suit. The Notice of Motion is accordingly disposed of.