1. Prior to the coming into force of the Industries Development and Regulation Act, 1951, the petitioners were manufacturing typewriters. They were, after the Act came into force, registered under Item 13(1) of the First Schedule to the said Act. Item 13 deals with Commercial, office and household equipment and sub- item(1) thereof with “typewriters”. On 17th November, 1977 the petitioners had permission to manufacture 50,000 typewriters.
2. On 14th April, 1982, the petitioners wrote to the Secretary of Industrial Approvals in the ministry of Industries of the 1st respondent stating that they were proposing to manufacture electronic typewriters within their over all licensed capacity of 50,000 typewriters and were informing the addressee accordingly. On 25th october, 1982, the petitioners were advised to submit an application for a licence under the Act for the manufacture of electronic typewriters, which would be considered on merits and in the light of the then extent policy. On 7th December, 1982, the petitioners wrote in reply that they were advised that the word `typewriters’ in Item 13(1) of the First Schedule to the Act was wide enough to include all types of typewriters, whether manual, electrical of electronic, and if they were to undertake the manufacture of electronic typewriters with their existing plant, machinery and equipment and market them under the trade name `Godrej’, they would not be manufacturing a new article as contemplated by the Act. On 4th January, 1983, the petitioners were again informed that they should make a separate application for the manufacture of electronic typewriters.
3. This petition was then filed to challenge the letters dated 25th October, 1982 and 4th January, 1983 written on behalf of the 1st respondent. At the stage of admission, interim relief was granted to the petitioners permitting them to manufacture typewriters without a fresh licence in that behalf. The order of interim was carried in appeal and was affirmed. The view taken was that a typewriter, whether it was manual or electronic was a typewriter covered by Item 1391) of the First Schedule to the ACt. The petitioners were licensed to manufacture typewriters under this item and were, therefore, entitled to manufacture electronic typewriters which were not a “new article”.
4. At this hearing stage, Mr. Dalal, learned counsel appearing for the respondents, based his argument upon the definition of “new article” in Section 3(d)(b) of the Act. So far as is relevant to the present in the Trade Marks Act, 1940, if at the date of registration the industrial undertaking was not manufacturing or producing such article bearing that mark. A Mark is defined in Section 2(j) of the Trade and Merchandise Marks Act, 1940 to include a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof.
5. Now, the affidavit filed by the respondents is entirely silent on this factual aspect of the matter. It is not even suggested that the petitioners’ electronic typewriters are sold under a mark other than the mark under which their standard typewriters are sold. There is, therefore, no factual material produced by the respondents in support of the submission that is now advanced. In fact, the only reference to a mark is to be found in the petitioners’ letter dated 7th December, 1982, addressed to the Dy. Secretary in the Ministry of Industries of the first respondents and it is there stated that the petitioners intended to market their electronic typewriters”under the trade mark Godrej”. Such material as there is on record, therefore, suggests that the electronic typewriters were not to be marked under a trade mark other than that already used on standard typewriters. That being so, electronic typewriters cannot constitute a new article within the definition of Section 3(dd)(b).
6. Mr. Dalal submitted that I must assume that the petitioners would market their electronic typewriters by indicating in advertisement etc. that they were electronic typewriters. This is a question of fact which could have been established with a minimum of effort. It is not for the court to assume facts when they are capable of being so demonstrated.
7. The petition is made absolute in terms of prayer (a)and (b).
8.Pending the disposal of the petition, the petitioners obtained certain reliefs in respect of basic customs duty on the furnishing of bank guarantees. Having regard to the order on the petition, the bank guarantees shall stand discharged. The respondents shall pay to the petitioners the costs of the petition.
9. Shri Dalal submits that the bank gurantees should not be discharged for some time. Having regard to what I have noted in the judgment, the submission is rejected.