SRIPRAKASH STEEL INDUSTRIES Vs. RAMAPADA CHATERJEE AND ANR.

JUDGEMENT

(1.) THIS is an appeal from an order of the District Judge, Kamrup made on 3.1.90 in Misc (J) Case No. 102 of 1981 arising out of Title Suit No. 23 of 1988 refusing to grant an interim injunction against the threats of patent action.

(2.) FACTS , The M/s. Sriprakash Steel Industries instituted a suit being TS No 23 of 1988 in the Court of the District Judge Kamrup for a declaration that there has been no infringement of the principal Defendants' alleged patent and the right of the Plaintiff to manufacture HDPE ,strainers as per specification required by the proforma Defendant, and for a permanent injunction against the principal Defendants -restraining them from taking any action against the Plaintiff on the basis of the notice dated 12.11.37. The case of the Plaintiff is that the notice dated 12.11.87 has been issued by the Plaintiff by the attorney of the principal Defendants threatening with proceedings for infringement of patent by alleging falsely that they have the patent right of manufacturing and marketing a kind of HOPE strainers. The notice is illegal as there has been no infringement of any patent. In the suit, the Plaintiff filed an application for temporary injunction restraining the principal Defendants, their men, agents and servants from taking the threatened action on the basis of the notice. The learned District Judge refused to grant interlocutory injunction. The order has been appealed to this Court.

(3.) SECTION 104 provides that no suit for a declaration under Section 105 or for any relief under Section 106 or for infringement of a patent shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit However, under proviso to Section 104 where counter claim for revocation of a patent is made by the Defendant, the suit, along with the counter -claim, shall be transferred to the High Court for decision.