ACME TELE POWER LTD Vs. SINTEX INDUSTRIES LIMITED

JUDGEMENT

(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.

(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.