M. Jagannadha Rao, C. J.

( 1 ) THE point arising in the case is of considerable importance in regard to patents registered in India by foreigners and not kept in use in our country and thereby seriously affecting our market and economy. The foreigner in this case is seeking temporary injunction against other users and the question is whether the non-use of the patented mechanical device by the foreigner in India can be a ground for refusing temporary injunction?

( 2 ) THE appellant, Franz Xaver Huemer, is an Austrian citizen. He filed the Suit No. 468 of 1994 on 26. 2. 1994 seeking a permanent injunction restraining the respondebt from making, using, exercising, selling or distributing any items which infringe the 5 patents belonging to the plaintiff bearing Nos. 161520, 162589, 162369, 163591 and 163095 and for a mandatory injunction to hand-over to the plaintiff all goods, advertising material or items which infringe the above patents, and for accounts of the profits, The plaint is filed by the plaintiff s through his power ofattorney, Mr. Raj Kumarlohia. Pending the suit the plaintiff filed IA No. 2233/94 for temporary injunction on the same lines. The Court initially granted temporary injunction on 1. 3. 1994 but vacated the same on 27. 11. 95 under the impugned order. The plaintiff has preferred TO this appeal against the said order.

( 3 ) THE plaintiff, Franz Xaver Huemer, registered the 5 patents in India on 31. 7. 85, 7. 6. 85, 7. 6. 85, 5. 3. 84 and 17. 1. 84. The patented items are certain mechanical devices used in textile industry. The plaintiff contended that in February, 1994, he came to know from the Journal Plasmas News that the defendants-respondents were claiming to manufacature and sell "four Shuttle High- Special Circular Loom" and "higher line speed megnet type C. W. ". The defendants equipment was displayed in the exhibition at Pragati Maidan 20th February to 4th March,1994 and plaintiff allegedly found for the first time, the loom and. binding mechanism of the defendants machine infringing the plaintiffs patent.

( 4 ) THE defendant-respondent contended in the IA that the plaintiff has nowhere alleged that he has been commercially exploiting his patents in India and that Mr. Raj Kumar Lohia, the power of attorney of the plaintiff is the Managing Director of an Indian Company called "lohia Starlinger Ltd". The said Lohia has displayed his machines in February-March,1994 at Pragati Maidan and as there was demand for the defendant s machines and no demand for the machines of Lohia Starlinger, the said Lohia decided to secure a power of attorney on 28. 2. 94 from the plaintiff and meanwhile filed suit on 26. 2. 94, (two days before that date ). According to the defendant, the suit is filed because of malice and business rivalry. There may be an undisclosed arrangement between the plaintiff and Mr. R. K. Lohia which has not been made known to the Court. The defendant has been in the textile business since 1969, he has developed his own machine after 2 years of hard work, his machine is low in cost, maintenance, mechanism, consumes less energy, has low operating costs and higher output as compared to Lohiya Machines. The plaintiffs devices are not inventions as defined in Patents Act, 1970 and there is no novelty. They are liable to be revoked on that very ground under Section 64. Further, on account of prior public knowledge and public user in India, from dates anterior to the dates of registration, the plaintiffs patents are liable to be revoked. Plaintiff does not have a prima facie case and any injunction in favour of plaintiff will cause irreparable injury to the defendants and throw a number of employees out of employment. The circular-loom, the weaving machine and the thread tension control device have been in extensive use in India for 20 years and the balance of convenience is also not in favour of the plaintiff. The plaintiff is guilty of suppression of facts. The main aim of the suit is to throw out

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