JUDGMENT :

C. HARI SHANKAR, J.

I.A. No. 5485/2021 (u/O. XXXIX Rules 1 and 2) and I.A. No. 7058/2022 (u/O. XXXIX Rule 4) in C.S. (COMM) No. 177/2021

1. The plaintiff is the registered proprietor of Design Nos. 322384-001, 322384-002, 323421-001, 330044-004, 330044-002 and 331964-001, under which design it manufactures and sells air coolers.

2. The present suit is concerned with Design No. 322384-002 (hereinafter referred to as “the suit design”) granted to the plaintiff on 9th October 2019.

3. The plaintiff’s case is that the “NOVA” range of coolers manufactured and sold by Defendant 1 infringes the suit design, in which the plaintiff has a valid and subsisting registration.

4. A comparative representation of the coolers of the plaintiff and Defendant 1 has been thus provided in Para 21 of the plaint, in order to indicate that they are identical:

5. On 16th April 2021, while issuing notice on I.A. No. 5485/2021, this Court had granted an ex-parte ad interim order in favour of the plaintiff and against the defendants.

6. Defendant 1 has, thereafter, filed I.A. No. 7058/2022, for vacation of the said order.

7. I have heard Mr. Neeraj Malhotra, learned Senior Counsel for the plaintiff and Mr. Arnav Goyal, learned Counsel for the defendant on these applications and proceed to dispose of them by this judgment.

8. Mr. Arnav Goyal, learned Counsel for Defendant 1, quite candidly, acknowledged that the design of the NOVA range of air coolers manufactured by Defendant 1 is, in fact, identical to the suit design. He, however, invokes Section 22(3) [Piracy of registered design:(1) During the existence of copyright in any design it shall not be lawful for any person: (a) for the purpose of sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the licence or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or (b) to import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof; or (c) knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article. (2) If any person acts in contravention of this section, he shall be liable for every contravention: (a) to pay to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt, or (b) if the proprietor elects to bring a suit for the recovery of damages for any such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly: Provided that the total sum recoverable in respect of any one design under clause (a) shall not exceed fifty thousand rupees: Provided further that no suit or any other proceeding for relief under this sub-section shall be instituted in any court below the court of District Judge. (3) In any suit or any other proceeding for relief under sub-section (2), every ground on which the registration of a design may be cancelled under Section 19 shall be available as a ground of defence] of the Designs Act read with Section 19(1)(b) of the Designs Act to plead prior publication of the design as a ground to urge that, on account of prior publication, the suit design is vulnerable to cancelation and that, therefore, the plaintiff cannot proce