Devinder Gupta, J.

( 1 ) THIS is a petition for cancellation of registration design No-154305 in class 3 dated 16th April, 1984 in the name of respondent No. l filed under Section 51a of the Designs Act, 1911.

( 2 ) IT is alleged that respondent No. l filed a suit No. 10/95 in the court of the Additional District Judge, Delhi seeking a decree for permanent prohibitory injunction against the petitioners on the basis of its registered design No. l54305 dated 16th April, 1984.

( 3 ) THE petitioner in that suit alleged that the design registered under No. 154305 is not valid and is opposed to basic principles of design law, being a copy of a German model, well known in India. It is alleged that petitioner No. l is a company incorporated under the Companies Act, 1956 having its registered office at Chinchawad, Pune and petitioner No. 2 is a seller of petitioner No. l s product in Delhi. Petitioner No. l is engaged in the manufacture and sale of vacuum flasks and refills for the past several years. Both the petitioners have been arrayed by respondent No. l in the said civil suit No. 10/85 filed by respondent No. l and since the petitioners are aggrieved by the existence of design No. 154305, they are the persons interested in seeking cancellation thereof within the meaning of the Designs Act, 1911 (hereinafter referred to as "the Act" ).

( 4 ) THE grounds on which cancellation has been sought are that there has been concealment of material facts by respondent No. l from respondent No. 2, while obtaining registration of its design as design No. l54305. Respondent No. 1 did not disclose the fact that vacuum flasks bearing the same design as design No. l54395 had already been published in India prior to its registration and the said design is not a new or an original design. Subject matter, of design No. l54305 is a copy of a German model, which had been imported by petitioner No. l as well as by respondent No. l into India, prior to 16th April, 1984. Respondent No. l imported the vacuum flask body (outer shell) from Germany and marketted the same even prior to March, 1984 in India and the design, subject matter of the registration, being re-published in India, it deserves to be cancelled. . It is further alleged that respondent No. 1 received the GEZI catalogue issued by Westdeutache Isolierflasche Company in the year 1983 and placed an order with the said German company for supply of outer shells, bearing the same design, as are the subject matter of the impugned design. The said order was confirmed on 15th January, 1984 and invoice is dated 19th January, 1984. The bill of lading related to the order is dated dated 29th January, 1984 and as such respondent No. l cannot contend that that it holds a valid registration. The subject matter of the design was also known to petitioner No. l and to various other parties in India from the year 1983 onwards. In addition, the Chief Executive of petitioner No. l had visited Germany in 1983 and obtained a sample of vacuum flask of the type known as Article 490 of M/s. Westdeutache Isolierflaschen Company. Respondent No. l had imported outer plastic body of the same type from Germany in the later part of 1983 and introduced its model vacuum flask through circular No. 120 dated 26th March, 1984 in the market. Respondent No. l in suit No. 10/85 has admitted the circular dated 26th March, 1984 and even in pleadings, respondent No. l having admitted imported vacuum flask the subject matter of design No. l54305 although has falsely stated that the import was carried out after the date of registration. Subject matter of design, which relates to the main body of vacuum flask was imported under valid licence and respondent No. l cannot, therefore, claim any goodwill in respect of an article which originated from Germany and was in fact in existence for the last several years not only in India but abroad also. In this back ground cancellation is sought.

( 5 ) AFTER notice, respondent No. 1 put in appearanc

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