JUDGMENT :

J.B.Goel, J.

1. Application (IA No.8597/96) under Order 39 Rules 1 & 2 and section 151 C.P.C. is of the plaintiff for temporary ad-interim injunction against infringment of registered design of the plaintiff 'in respect of Soles of footwear and for passing off in a suit for permanent injunction filed by plaintiff, under section 5 3 of the Designs Act, 1911 (hereinafter called `the Act') seeking injunctions against infringement of their registered design No. 170002 in respect of Soles of footwear registered and for passing off and ancilliary reliefs of rendition of accounts, damages and for delivery and destruction of the infringing goods and the dies used for their manufacture.

2. It is alleged that the plaintiff is a partnership firm and is a leading and renowned manufacturer of Soles of Footwear; which are of superior quality and enjoy enviable reputation and position in the market-, their sales in this design have mounted to about Rs.50 Lacs; the design of their Soles of Footwear is registered as No. 170002 under the Act in the name of the plaintiff as its proprietor-, that the plaintiff on or about 10th August, 1996 came to know that the defendants are using for sale of soles of footwear with design which is identical with/ fraudulent or obvious imitation of die aforesaid registered design of the plaintiff without the licence or consent of the plaintiff and thereby they are infringing the registered design of the plaintiff and thus are committing piracy of the said registered design of the plaintiff and thereby passing off goods as those of the plaintiff they are thereby causing damage to the reputation, goodwill and monetary loss to the plaintiff. The plaintiff have claimed reliefs of injunction against infringement of their registered design, passing off etc. Plaintiff alongwith the suit have filed impressions of their registered design of their sole, and also of the infringing sole of the defendant.

3. On 19.9.1996 an ex parte ad-interim injunction was granted restraining the defendants, their servants, and agents from manufacturing and sell' soles with design similar to the registered design of the plaintiff.

4. Defendants on being served have filed written statement as well as reply to the aforesaid [A contesting the claim of the plaintiff. Separately. I.A. No.9048/96 under Order 39 rule 4 and section 151 of the C.P.C. has also been filed for vacating the ad-interim injunction granted on 19.9.1996.

5. Defendant No.2 has alleged that he is the sole proprietor of defendant No. 1 and is the proprietor of the registered design No. 170827 in respect of soles of the footwear and as such by virtue of this registered design defendant has an exclusive right to use and manufacture for sale said goods with this design. It is also alleged that the design of the defendant is different and distinct from the design of the plaintiff and that is why the Controller of Patents and Designs had granted registration to his design. Objection has also been taken that this court has no pecuniary jurisdiction to entertain and try the suit in view of the provisions of sections 48 and 53 of the Act.

6. Both the parties thus claim to be proprietors of their respective registered design in respect of the same goods, namely, sole of footwear.

7. Both the parties have placed on record copies of their respective certificate of registration of their designs.

8. As appears from the copy of the certificate of registration No.008676 issued on 19th April, 1996, plaintiff had applied for registration of their design as Design No. 176002, dated 11. 10. 1995 in respect of the 'sole of footwear' which has been registered in the name of Alert India, a partnership firm in class 10.

8. Copy of the certificate of registration bearing No.00864 issued on 12.4.1996 filed by defendants shows that application for registration of his design as Design No. 170827 was made on 4th March, 1996 in respect of the 'sole' which has been registered