S.C.Ghose, J. - (1.) This is an application for cancellation or revocation of the registration of the design bearing No. 134095 dated the 26th June. 1968. This application has been made under Section 51-A of the Patent and Designs Act 1911. The said section reads as follows :-- "51-A. Cancellation of registration--- 1. Any person interested may present a petition for cancellation of the registration of design- (a) At any time after the registration of the design, to the High Court on any of the following grounds, namely :-- (i) that the design has been previously registered in (India); or (ii) that it has been published in (India) prior to the date of registration; or (iii) that the design is not a new or original design; or (b) Within one year from the date of registration to the Controller on either of the grounds specified in Sub-clauses (i) and (ii) of Clause (a).
(2.) An appeal shall lie from any order of the Controller under this section to the High Court, and the Controller may at any time refer any such petition to the High Court, and the High Court shall decide any petition so referred". 2. The facts leading to the making of this application are set out hereunder: On or about January 29. 1968 the petitioner applied to the Controller of Patents and Designs at Calcutta for the registration of a patent in respect of a 'picnic set' being an assembly of tumblers made of plastics. After making the said application the petitioner started manufacturing and marketing for commercial purposes the said assembly of tumblers.
(3.) The petitioner subsequently came to know that on or about June 26, 1968 an application was made by one J. K. Savani of Bombay for the registration of a design in respect of assembly of tumblers. On the said date, i. e., 26th June, 1968 a certificate of registration of design bearing No. 134095 was issued by the Controlier of Patents and Designs in favour of the said J. K. Savani of Bombay. Prior to the said application made by the said J. K. Sayani for the registration of the said design on 26th June, 1968 but subsequent to the date of application for the issue of the Patent made by the petitioner the said J. K. Sayani also known as Jayantilal Kalidas Sayani produced and sold in the market the said assembly of tumblers according to the said design. The petitioner on coming to know of the said marketing of the said tumblers according to the said design complained of the infringement made thereby of its aforesaid patent in respect of the said 'picnic set'.;