V.K.Bist, J. - (1.) PRESENT Special Appeal has been filed by the appellant challenging the order dated 30 -06 -2008 passed by Hon'ble Single Judge in Original Suit No. 02 of 2008 by which application of the plaintiff/appellant for temporary injunction under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure, 1908 was rejected.
(2.) BRIEF facts of the case are that the plaintiff/appellant instituted Civil Suit No. 02 of 2008 for permanent in junction in the Court of District Judge, Rudrapur under section 104 of Patents Act, 1970 for restraining the defend ants/respondents from infringing the property right of the appellant into pat ents. According to the case of the plain tiff the plaintiff/appellant manufactur ers products known as "Green Shel ter" and "Compact Power Interface Unit" at its factory within the territory of State of Uttarakhand. These two products are purchased by and used in Telecom industry for efficient manage ment of the temperature for telecom equipment at telecom towers. Defendant/respondent no. 1 is a company run ning business of manufacturing and supplying Sintex BTS Shelters (using therein Integrated Power Unit) and de fendant/respondent no. 2 is a partner ship firm manufacturing and selling in tegrated power unit, allegedly by in fringing the plaintiff/appellant's intel lectual property rights. The plaintiff/ap pellant is committed to constant inno vation and has spent huge capital and labour in inventing its products. The two products of the plaintiff/appellant namely Green Shelters and Compact Power Interface Units were the result of extensive research and develop ments, as such, the application was moved by the plaintiff/appellant for getting registered the patent. Conse quently, the authority concerned granted registration of patent No. 197086 on 11 -08 -2006, for Power In terface Unit and No. 197108 on 08 -09 -2006, for Cuboidal shaped green shelter. By virtue of ownership of above patents, the plaintiff/appellant has right to prevent all other persons from mak ing, using, selling offering to sell or im porting two products. It is alleged that the defendants/respondents were in fringing the valuable intellectual prop erty rights of the plaintiff/appellant by manufacturing, using copy right works of plaintiff/appellant and selling the same in the market. The plaintiff/ap pellant also moved an application for interim injunction. The defendants/respondents filed their separate written statements and counter claims. In the written state ment of defendant/respondent no. 1, territorial jurisdiction of the court in Uttarakhand is challenged with the al legation that no part of cause of action has arisen within the territory of Udham Singh Nagar (Uttarakhand). It is also stated in the written statement of de fendant/respondent no. 2 that suit is bad for misjoinder of causes of action. It is further pleaded that, the suit has been filed after the plaintiff/appellant failed to get relief in suit no. 598 of 2005 instituted before Delhi High Court and withdrew it. It is further stated by defendant/respondent No.1 that he is manufacturing Base Trans. Station Shelter (for short BTS Shelter) on the basis of the requirements of the specification demanded by the customers. It is specifically denied that patent products namely 'Cuboidal Shaped Green Shelter' (in short Green Shel ter) and 'Compact Power Interface Unit' (in short PIU) are inventions of plaintiff/appellant. It is further stated that products with different names are used in telecommunication Industry for a long time. Nine distinguishing fea tures between the products by plain tiff/appellant and the one by defend ant/respondent No.1 are enumerated in para 9 of the written statement. De fendant/respondent No.1 pleaded that the plaintiff/appellant's patented prod ucts "Green Shelter" is nothing more than workshop modification and the patent is liable to be revoked. Objec tions filed under Section 2 of Patent Act, 1970, by defendant/respondent No.1 against patent No. 197108 and 197086, are pending for decision of the authorities concerned. Denying the plaintiff/appellant's right is infringed it is also pleaded by defendant/respond ent No.1 that defendant/respondent no. 1 would suffer irreparable loss if the injunction is granted in favour of the plaintiff/appellant while the plaintiff/ap pellant can be compensated in terms of money. Defendant/respondent no.2 also filed his written statement and also raised objection as to territorial juris diction of the court. It is pleaded that no cause of action has arisen to the plaintiff/appellant against him. It is fur ther pleaded that the plaintiff/appellant has not come to the court with clean hand and is not entitled to the relief claimed. It is also stated in the written statement that there is material con cealment of fact that Sintex has chal lenged the patents of plaintiff before the authorities concerned and the said matter is pending for disposal. Defend ant/respondent no.2 further pleaded that products, which were got patented by the plaintiff/appellant are not inven tions. Phase Change Material (PCM) Power Interface Unit (PIU) and Green Shelter, are not inventions, PCM are products, known to the world for several years and are being used for main tenance of temperature with or with out use of air conditioners and can be considered environment friendly. In fact appellant was earlier purchasing PCM products from Australian manufacturer TEAP Energy Ltd. Similarly, PIU is a product where various electronic and electrical products like, Servo Stablizer, Isolation Transformer, Alarm Panel, etc. are - to be in a Panel Board. Such devices are also available in the mar ket. Some assembles of PIU are known as Integrated Power Unit (PIU), Power Management System (PMS), etc. As such, the defendants/respondents are not barred from manufacturing and selling the same. Denying the copy rights of the designs claimed by the plaintiff/appellant, it is pleaded that plaintiff/appellant design is nothing but workshop modification of the existing products. Denying that defendant/re spondent no.2 has any access to website or has downloaded any information at Pantnagar, it is stated that this Court has no jurisdiction to try the suit. Challenging the experts report, re lied by the plaintiff/appellant, it is pleaded that no intellectual property right of the plaintiff/appellant is being violated by the defendants/respondents, it was further stated that if the plain tiff/appellant is granted injunction it would cause enormous loss to the de fendants/respondents, while plaintiff/appellant can be compensated in terms of money. It is further pleaded that since patent in question are challenged before the authority and the counter claim is pending in the suit as such no injunction can be granted and the suit is liable to be dismissed.
(3.) ON 22 -01 -2008 the learned Dis trict Judge, Udham Singh Nagar granted an ex -parte injunction against the defendants/respondents under or der 39 Rule 1 and 2 of the Code of Civil Procedure, 1908. This injunction was extended till 01 -04 -2008. ON 01 -04 -2008 the suit along with injunction application was transferred to this Court under Proviso of Section 104 of the Patents Act, 1970. While doing so the learned District Judge also extended the ex -parte injunction. Therefore, on 25 -04 -2008 Hon'ble Single Judge of this Court extended the ex -parte injunc tion till 19 -05 -2008 but same was not extended on 19 - 05 -2008. Miscellane ous application for extension of stay order filed by the plaintiff/appellant re mained pending and was not disposed off but on 30 -06 -2008 the Hon'ble Sin gle Judge passed an order declining to grant temporary injunction to the plain tiff/appellant against which present Special Appeal is preferred. The Hon'ble Single Judge refused to grant interim injunction on two ground : (i) Prima facie it appears that the respondents were al ready producing their prod ucts before the appellant got his production patented. (ii) The appellant had sup pressed the following mate rial facts: - (a) The respondents were al ready in the business of manufacturing similar prod ucts. (b) The institution of Original Suit No. 598 of 2005 against respondent No.1 in the High Court of Delhi and its withdrawal on 15 -11 -2007. Heard Shri R. Parthsarthy, Ad vocate with Shri Lalit Sharma, Advo cate for the appellant and Mr. V.K. Kohli, senior advocate with Mr. H.M. Bhatia, Advocate for the respondents.;