Sultan Singh, J.
(1) Virendra Dresses, plaintiff/appellants challenge the judgment and order dt. 21-7-1981 of the Additional District Judge, Delhi refusing to issue a temporary injunction restraining the respondent/ defendant namely Varindra Garments from adopting the said trade name in relation to ready made garments business or any other allied business amounting to passing off and from giving an impression to the trade and public that the defendant is associated with the plaintiffs. The plaintiffs filed a suit for permanent injunction for passing off and rendition of accounts against the defendant alleging that the plaintiffs constituted a partnership firm, manufacturing and dealing in all kinds of readymade garments at Ashok Gali, Gandhi Nagar, Delhi under the name and style of Virendra Dresses since August, 1978, that their sales in 1978 were to the tune of Rs.50,000.00 and in 1980-81 the gross sales rose to Rs. 2,50,000.00 , that they adopted their trade name Virendra Dresses from the name of a partner, namely Virender Jain, that their application for registration of trade name device Virendra Dresses has been pending with the trade mark registry, that the defendant in January, 1980 adopted a confusingly and deceptively similar trade name Varindra Garments which is being run in the same street as that of the plaintiffs, that the adoption of trade name Varindra Garments was done by the defendant with the dishonest intention of trading upon the established reputation of the plaintiffs, that the defendant had full knowledge of the status and reputation of the plaintiff's trade name, that the business of the plaintiffs and the defendant was of a similar nature, that the traders and the public who used to visit the plaintiff's shop for their purchases of readymade garments are bound to consider the defendant as directly associated with the plaintiffs or they may consider as a branch of the plaintiffs, that the trade name adopted by the defendant is exactly similar, that he is using the word 'Garments' in an in. significant manner and the main word is 'VARINDRA' that the defendant's place of business is only 50 yards away from the plaintiffs' place of business, that the action of the defendant has resulted into actual deception causing loss of business and reputation to the plaintiffs, that the business of the defendant was meagre as compared to the old and established business of the plaintiffs, that the defendant shall not suffer any loss in changing the name. The plaintiffs along with the suit filed an application for temporary injunction. The defendant in his written statement and reply to the injunction application submitted that Varindra was the name of a member of Hindu Undivided Family of the defendant, that Varinder was the younger brother of the defendant, that he started his business in the beginning of 1980, that the two trade names of the plaintiffs and the defendant were entirely different in words and spelling, that his work of readymade garments was limited to maxi, gowns and gents shirts which items were not prepared by the plaintiffs. The trial Court dismissing the application for the grant of temporary injunction has observed that the trade name Varindra Garments is distinctly different from the name Virendra Dresses and as such there cannot be any confusion in the mind of the customers. It was held that the trade name of the defendant was not deceptively or confusingly similar to the trade name of the plaintiff. The plaintiffs have filed this appeal.
(2) It is well known that no man is entitled to carry on his business in such a way as to represent that it is the business of another or is in any way connected with the business of another. A person has a legitimate right to carry on business under his own name but he cannot carry on the business which may have the effect of passing off his goods as the goods of other. The plaintiffs have been carrying on their business in readymade garments since August, 1978. Their sales from Rs.50,000.00 in 1978 rose to Rs.2,50,000.00 n 1980-81. The defendant started his business under the trade name Varindra Garments in January 1980. He does not disclose the sales since the commencement of the business. The plaintiffs and the defendant carry on business in the same street at a distance of about 50 yards only. The plaintiffs sent a notice dated 21-4-1981 to the defendant requiring him to stop using the trade name Varindra Garments in connection with the readymade goods. The defendant sent a reply through Surender Kumar proprietor wherein it was alleged that the two names did not resemble. Prima facie it is apparent that the words 'VARINDRA' in plaintiffs' trade name and the words 'VIRENDRA' in dafendant's trade name are similar, if not identical as the spelling of the two words arc different. But when the two names are pronounced there does not appear to be any difference. The words 'dresses' and 'garments' mean the articles of clothing. Thus the main word which is likely to cause confusion in the two businesses of the plaintiffs and the defendant is 'VARINDRA'. The two trade names of the plaintiffs and the defendant are similar and this similarity 18 sufficient to give rise to great risk of confusion. Similarity and confusion are to be determined from the point of view of a common man. A man in the street will remember the name 'Varindra' he may not be able to make a distinction between the 'garments' and 'dresses'. If a man goes in the street where the plaintiffs and defendant are carrying on business he may enter the business premises of the defendant. Thus there is every likelihood of confusion if a public man goes to the street where the plaintiffs and the defendant are carrying on business. A customer intending to go to the business premises of the plaintiffs is likely to visit the business premises of the defendant when the two trade names are so similar. I am thereforee of the view that the two trade names are not distinctively different bill are similar likely to cause confusion. The plaintiffs have been carrying on business since August, 1978. They have acquired reputation and the sales have risen. The defendant has not disclosed his sales or reputation in the market. The plaintiffs are thereforee prima facie likely to suffer in business and reputation if the defendant is allowed to carry on business in readymade garments in the existing trade name. The defendant has recently started his business and it is desire- able that he should stop using the said trade name even during the pendency of the suit. If the defendant is not restrained it may result in confusion to the business of the plaintiffs and the defendant. In Ishar Das v. Bhaion Ki Dokan, A.I.R. 1940 Lah 39 the plaintiff was carrying on business under the name 'Bhaion Ki Dokan'. The defendants started the business under the name 'Punjabee Bhaion Ki Dokan'. The defendants' were restrained till the decision of the suit from using the trade name 'Punjabee Bhaion Ki Dokan' as the two trade names were similar which was likely to cause confusion in the minds of the intending purchasers. In Banjit Singh v. Jaswant Singh, the plaintiffs were carrying on business under the trade name 'Ex-Soldiers Store'. The defendants started the business under the name 'R.J. Singh and Sons (Ex-Soldiers Store)'. The defendants were restrained from trading under the said name. It is not disputed that the plaintiffs have been using the said trade name prior to the user by the defendant. The action is for passing off. In Century Traders v. Roshan Lal Duggar (b Co bothers, : AIR1978Delhi250 it has been held that in an action for passing off in order to succeed in getting an interim injunction the plaintiff has to establish user of the mark prior in point of time than the impugned user by the defendants. Further it has been observed that actual damage is unnecessary in a passing offaction. In Midland Countries Dairy Ltd. v. Midland Dairies Ltd., 65 R.P.G. 429, the plaintiffs were carrying on business of Ice Cream under the name 'Midland Counties Dairy Ltd.'. The defendants started business in ice cream under the name 'Midland Dairies Ltd.'. The defendants were restrained as their name was liable to be confused with that of the plaintiffs.
(3) Learned counsel for the defendant/respondent submits that the two names are different that Varindera is the name of a member of his Hindu Undivided Family. Surinder Kumar has described himself as Proprietor of Varindera GARMENTS. The reply to the notice was given by him as Proprietor. In his affidavit dated 13-7-1981 filed before the trial Court also he described himself as S.K. Mehtani, Proprietor of defendant firm i.e. Varindera GARMENTS. Nothing has been placed on record to show that the defendant-firm is a Hindu Undivided Family firm. The defendant does not carry on business in his own name but the allegation is that the word 'Varinder' is the name of his younger brother. He is not entitled to carry on business in the name of his younger brother with a view to create confusion in the minds of the public by adopting a name which is similar to the trade name of the plaintiffs. Learned counsel for the defendant further submits that the spelling in the two trade names of the word 'Varindra' are different. This is immaterial. Different spellings appear to have been kept by the defendant with a view to deceive the public but sounds are identical. Thus I am of the view that the trade name adopted by the defendant would prima facie create confusion if he is permitted to continue the same. Moreover it will mislead the people to believe that the business of the defendant was the business of the plaintiffs. In other words it would cause confusion between the two businesses.
(4) Lastly learned counsel for the respondent submits that the plain- tiffs firm is a partnership firm and suit is barred under Section 69 of the Partnership Act. Admittedly it was not a registered firm under the Partnership Act on the date of institution of the present suit. Section 69 of the Partnership Act reads as under :
69.( 1 ) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing arc or have been shown in the Register of Firms as partners in the firm. (3) The provisions of Sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect : (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or (b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partner. (4) This section shall not apply : (a) to firms or to partners in firms which have no place of business in (the territories to which this Act extends), or whose places of business in (the said territories) arc situated in areas to which, by notification under (Section 56), this Chapter doe not apply, or (b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in Section 19 of the Presidency Small Cause Courts Act, 1882, or, outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887, or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.'
(5) The suit was filed by a firm against a third party. Thus under Sub-section (2) of Section 69 of the Partnership Act a suit to enforce a right arising from a contract against a third party is barred unless the firm is registered. The application of Sub-section (2) does not extend to the enforcement of rights not arising from contract. The present suit of the plaintiffs against the defendants does not arise out of any contract between the parties and as such Section 69(2) of the Partnership Act is not applicable. The objection of the defendant thereforee has no force.
(6) The order of the trial Court is not according to law. I, thereforee, accept the appeal and set aside the judgment and order dated 21-7-1981 of the trial Court. A temporary injunction till the decision of the suit by the trial Court is issued restraining the defendant/respondent from adopting or carrying on business in the name of 'VARINDERA GARMENTS' or any other name calculated to mislead the people to believe that the business of the defendant was the business of the plaintiffs so as to cause confusion between the two businesses. No order as to costs.