G.R. Majithia, J. - (1.) This appeal is directed against the trial order of the Judge declining the application moved by the plaintiff-appellant under Order 39, rules 1 and 2, Civil Procedure Code, for restraining the defendant-respondent from manufacturing, selling and or offering for sale spray dryers having a construction of Patent No. 153418 and further infringing Patent No. 153419.
(2.) The facts:- "The appellant/Plaintiff brought a suit for permanent injunction and rendition of accounts under Patent Act, 1970 on the ground that it is engaged in the manufacture and sale of various equipments and apparatuses for use in the dairy industry. One such equipment relates to a "sprayer dryer". Its Patent number is 153418 from February 12, 1981. The said Patent is valid and subsisting. It relates to Spray Dryer for spray drying milk. The appellant/plaintiff has exclusive rights by itself, its agents or licenses to make use or exercise sale or distributing sprayer dryers covered by the said Patent in India, under Section 48(2)(a) of Patent Act, 1970 (for short, the Act). By virtue of the appellant/plaintiff having been recorded as patentee in respect of Patent No. 153419, the appellant/plaintiff its agent or licensees have the exclusive right to exercise under Section 48(2)(b) of the Act. On September 2, 1986, a tender notice was published in the newspaper. In pursuance of the tender notice, the order was awarded to the respondent/defendant, who had recently commenced, fabricated and supplied the various components of the spray Dryerin infringement of Patent No. 153418. The appellant/plaintiff informed the party that it had the exclusive right to deal with various components of the Spray Dryer being a patentee, under Patent No. 153419.
(3.) The respondent/defendant controverted the allegations made in the application and stated that there is no infringement as it is not manufacturing, selling, offering for sale spray dryer having the construction of Patent No. 153418. It is only repairing, rectifying and expanding an existing plant of powder milk which belonged to the Punjab State Co-operative Milk Producers Federation Ltd. Chandigarh. The salient features of the apparatus constitute four integers. The respondents/defendants job work does not entail manufacture of equipment in which all four integers are present or even substantially present. On the other hand, it is merely repairing and rectifying equipment and did not work, and expanding the capacity of the existing equipment by adding certain standard price and exercise accessories, for which there is no patent whatsoever. Even the subsidiary claim of the two patents does not cover the standard price of exercise. In nutshell, defendants defence is that it is not manufacturing and following blindly the technology of the appellant/plaintiff and is not manufacturing any new spray dryer.;