MODERN DIES Vs. SYMPHONY COMFPRTS SYSTEMS LTD

JUDGEMENT

(1.) This is an application under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short the 'Act') read with Section 151, CPC seeking stay of the proceedings in suit bearing No. CO 8/1997.

(2.) Petitioner Modern Dies has filed this petition for cancellation of design registration No. 172063 dated 26.2.1997 under the provisions of Section 51-A of the Designs Act, 1911. It is pleaded that the petitioner's sister concern Modern Fans having same partners is dealing in the manufacture and sale of bodies of air coolers, grills for air conditioners, television cabinets and water thermos. Petitioner's firm is engaged in the manufacture of dies and tools for its various clients as well as for its sister firm Modern Fans. It is alleged that respondent has got a design for air cooler registered vide registration No. 172063 dated 26.2.1997 and also filed a Suit No. 587/97 for infringement against the petitioner. According to the petitioner the said registration of the respondent's design is invalid and deserves cancellation as it was obtained by concealment of material facts. Petitioner's case is that Modern Fans, sister concern of the petitioner, has been manufacturing bodies for air coolers for a considerable period of time. Earlier bodies for air coolers of Modern Fans were generally of a rectangular shape and similar to those of other manufacturers. In the year 1994 petitioner and its partners arrived at a D-shape construction of a body of air cooler, as the flow properties within the body of cooler can be improved by a circular surface of the body. Thus, as the front surface of the cooler body having the discharge grills had to be planer or substantially planer in shape. Petitioner and his engineer concluded that the remaining wall surface should preferably be circular in shape and resulting in a D shaped cooler body. The D shape of the air cooler body evolved by the petitioner was not with the object of improving the aesthetic value of the air cooler, but with a functional objective to improve the efficiency of the air flow. The petitioner discussed the said proposal with Mr. Jeet Ram of Model Artisan in 1995. Model Artisan prepared a drawing of a D shaped cooler body and also provided a mock up model of D shaped body of the air cooler to the petitioner from which the petitioner then made the necessary moulds. In May 1995, Modern Fans received the moulds from the petitioner and in June 1995 manufactured five of such D shaped cooler bodies which were then despatched to their dealer in Hyderabad, M/s. Classic Sales & Services so that the said dealer could exhibit such air coolers to the public. The said dealer M/s. Classic Sales & Services incorporated the additional items such as blower, pump and pads into the five D shaped cooler bodies. However, these bodies were found to be defective and the deficiency was reported to the petitioner by the dealer through a letter dated 2nd September, 1995. The petitioner worked on the deficiencies pointed out by the dealer and after removing those deficiencies despatched fresh models to the said M/s. Classic Sales and Services on 18th July 1996. The said agent sent a report dated 25.8.96 intimating that the cooler bodies now received are quite satisfactory. Vide said letter dated 25.8.96 the agent also sought permission of the petitioner to print pamphlets relating to such an air cooler, which permission was granted verbally. Accordingly, M/s. Classic Sales and Services got printed pamphlets showing the D design of air cooler and such pamphlets were circulated in September 1996. A copy of the said pamphlet is annexed as Annexure-IV.

(3.) It is pleaded by the petitioner that petitioner was the first to have conceived a D shaped body of the air cooler and the said shape was made available to the public much prior to the registration of design No. 172063. It is the contention of the petitioner that respondent has obtained registration in respect of D shaped design by misrepresentation of facts and therefore impugned design registration No. 172063 is invalid and liable to be cancelled in view of 51- A of 'The Designs Act, 1911' and hence this petition under Section 51- A of ' The Designs Act, 1911' which has been registered as a suit.