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2001 Supreme(Del) 1079
High Court Of Delhi
S.S.PRODUCTS OF INDIA - Appellant
Versus
STAR PLAST - Respondent
Interim Application 1815 of 2001
Decided On : 08/17/2001
Headnote:Civil Procedure Code, 1908 - Section 20 — Jurisdiction — Defendant is not a resident of Delhi — No registered office of Plaintiff in Delhi — Defendant not indulged in massive sale at Delhi Meaning thereby he is not carrying on business at Delhi — Delhi has no Jurisdiction to entertain the suit.
Held:
Though the plaintiff has made certain assertions but in the memo of parties it has dearly been mentioned that both the parties are residents of places other than the Delhi. Under Section 20 a civil suit could be instituted at a place where the defendant resides or carries on business or where the cause of action may arise.
The other exceptions of there being more than one defendants need not be gone into for purposes of the present order. From the aforesaid it is clear that it must be shown that the defendant is a resident of Delhi or caries on business at Delhi. Admittedly, as referred to above defendant is not a resident of Delhi. He is shown to be resident of village Gill, District Ludhiana. There is no registered office of the plaintiff shown to be in Delhi. It is not even prima facie established that defendant has been indulging in massive sale at Delhi so as to indicate that he is carrying on business at Delhi. In the absence of any such fact it must prima fade for purposes of the present order be held that the civil court at Delhi has no jurisdiction to entertain the suit.
Designs Act, 1911 - Section 53 — Infringement of Designs — Plaintiff is registered owner of design of air pump — Application for ad interim injunction filed to restrain the defendant its agents and distributors from manufacturing, selling and infringing the registered design of the plaintiff — In fact both the parties are holding registration of the design — Each of them can use design for its products — It would be improper to grant an ad interim injunction in favor of another.
The first and foremost question that comes up for consideration in the peculiar facts is as to whether plaintiff on the assertions made is entitled to prima facie show that his design has been infringed or in other words is entitled to claim ad interim injunction or not. The facts show that plaintiff has got a registered design for air pump No. 176150 dated 6th April, 1998. In this process what is obvious is that both me parties have got their designs registered. When such is the situation in that event the proper remedy in any case would be to that the parties should avail their remedies under Section 53 of the Designs Act. When both the parties are holding registration of the design then each of them can use that design for its products. It is a different matter that either party may seek cancellation of the design of the other in accordance with law but so long as designs occur and are being held, it would be improper to grant an ad interim injunction in favor of another.
(August 17, 2001) 2001 (TLS)125715
2002-DLT-95-84 :: 2001-ILRDLH-7-99
S. S. PRODUCTS OF INDIA Vs. Star Plast
V. S. AGGARWAL
( 1 ) S. S. PRODUCTS of India is a partnership concerned. It has filed the present suit for permanent in junction invoking Section 53 of the Designs Act, 1911 besides delivery of infringing material as well as for rendition of accounts.
( 2 ) THE facts alleged are that plaintiff firm is a reputed manufacturer and trader of all types of air pumps including air pumps for cycle etc. It had developed new design air pumps having distinctive features, design for shape, configuration of air pumps. The plaintiff firm has been getting the designs of air pumps developed and marketed registered under the provisions of Designs Act, 1911. It is the registered owner of the design of air pump i. e. design no. 176150 dated 6/4/1998.
( 3 ) ASSERTIONS of the plaintiff are that the said design had been so designed first tine in India and is original design made by the plaintiff. The design and its registration is still valid. In May 2000 it came to the notice of the plaintiff firm that the defendants and their associates with dishonest intentions and mala fide intentions have started manufacturing air pump for cycle which is similar and identicali to the plaintiff. As per the plaintiff this has been so done with dishonest intentions because the punp manufactured by the defendant is virtually similar to that of the plaintiff s design.
( 4 ) DURING the pendency of the civil suit ad interim injunction had been claimed vide IA 1851/2001 to restrain the defendant/respondent, its agents and distributors from manufacturing, selling or offering for sale or infringing the registered design of the plaintiff. By the present order the above said interim application is proposed to be disposed.
( 5 ) IN the written statement filed the defendant has contested the suit. It has been pointed that certain material facts has been suppressed. As per the defendant the plaintiff has not disclosed that design of the answering defendant is also registered vide registration no. 182208 dated 27/4/2000. It has been duly registered by the Controller General of Patents and Design which has also issued the certificate of registration of design. The suit filed under Section 53 of the Designs act was stated to be not maintainable. Plea has also been raised that defendant has been manufacturing and selling the air pumps and it is in no way infringing the registered design of the plaintiff. In the alternative it has been pointed that the air pump registered in favour of the defendant is different from the design of the plaintiff s air punps in various forms and details of the said defences have been enumerated in the written statement. Furthermore, plea has been raised that this court has no jurisdiction to entertain the suit. The registered office of the plaintiff as well as the defendant are at Ludhiana. There is no proof of alleged business in Delhi.
( 6 ) THE first and foremost question that comes up for consideration in the peculiar facts is as to whether plaintiff on the assertions made is entitled to prima facie show that his design has been infringed or in other words is entitled to claim ad interim injunction or not. The facts show that plaintiff has got a registered design for air pump no. 176150 dated 6/4/1998. In this process what is obvious is that both the parties have got their designs registered. When such is the situation in that event the proper remedy in any case would be to that the parties should avail their remedies under Section 53 of the Designs Act. When both the parties are holding registration of the design then each of them can use that design for its products. It is a different matter that either party may seek cancellation of the design of the other in accordance with Iaw but so long as designs occur and are being held, it would be improper to grant an ad interim injunction in favour of another.
( 7 ) REFERENCE in t
