CS (COMM) 262/2020

Page 1 of 15

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

CS (COMM) 262/2020

Reserved on : 10.09.2021.

Date of Decision: 12.10.2021.

IN THE MATTER OF:

E.N. PROJECT AND ENGINEERING INDUSTRIES (P) LTD. AND

ANR.

..... Plaintiffs

Through: Mr. S.K. Bansal and Mr. Ajay

Amitabh Suman, Advocates.

Versus

KVT ELECTRICAL PROJECT AND ENGINEERING AND

ORS.

..... Defendants

Through:

Mr. Jayant Mehta, Sr. Advocate

along with Mr. Amit Jain and Mr.

Govind Chaturvedi, Advocates.

CORAM:

HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

JUDGMENT

MANOJ KUMAR OHRI, J.

I.A. No. 1262/2021 (Under Order XXXIX Rules 1 and 2 CPC) & I.A. No.

1274/2021 (Under Order XXXIX Rule 4 CPC)

1. The Interlocutory Application bearing No. 1274/2021 has been filed under

Order XXXIX Rule 4 CPC read with Section 151 CPCon behalf of the

Defendants seeking vacation of the order dated 18.12.2019 passed by the

Sessions Court granting ad-interim, ex-parte injunction against the Defendants

in relation to the Plaintiff‟s registered design bearing No. 227672.

2. In the present application, the following prayers have been made:-

2021:DHC:3285

CS (COMM) 262/2020

Page 2 of 15

A.

Allow the present application for vacation of injunction

B.

Dismiss the application under Order XXXIX Rule 1 & 2 CPC read

with Section 151 CPC with exemplary costs

C.

Vacate the order dated 18.12.2019 granting interim injunction.

3. By way of this order, I shall dispose of both the aforesaid I.A.s i.e. I.A.

No. 1274/2021 filed by the Defendants under Order XXXIX Rule 4 CPC and

I.A. No. 1262/2021 filed by the Plaintiffs under Order XXXIX Rule 1 and 2

CPC.

4. Briefly stated, the present suit has been instituted by the Plaintiffs seeking

grant of permanent injunction against the Defendants, in respect of the alleged

infringement of their registered design, alongwith a prayer for delivery up,

rendition of accounts and damages. Plaintiff No. 2 is a Director of the Plaintiff

No. 1 company, however it is Plaintiff No. 1 whose proprietary rights in the

registered design in question are alleged to have been infringed. Thus, for the

sake of convenience, any reference to the „Plaintiff‟ in this order shall mean the

Plaintiffs collectively.

5. The Plaintiff is a manufacturer of “cable trays”, which are stated to have

application in various industries like Food Processing, Dairies,Bottling Plants,

Metro Railways, Airports, Malls, High Rise Buildings, Business Parks, etc. It

holds a registration under Section 6 of the Designs Act, 2000 (hereinafter

referred to as the „Act‟) since 05.03.2010. According to the Plaintiff, the design

was registered as it was new, original and novel, which are the pre-requisites for

registration under Section 6 of the Act. The Plaintiff further claims that its

registered design has acquired a secondary meaning in the market.

6. By way of the suit, the Plaintiff has alleged that the Defendants are

manufacturing and selling a product which is an imitation of the Plaintiff‟s

subject matter registered design. It has further been averred that the imitation by

2021:DHC:3285

CS (COMM) 262/2020

Page 3 of 15

the Defendants of the Plaintiff‟s registered design is in bad faith, since

Defendants are the Plaintiff‟s erstwhile distributors for the same product, i.e. the

product which is the subject matter of the suit. It has also been averred that

being ex-distributors of the Plaintiff, the Defendants were aware of the fact of

registration and in spite of this knowledge, the adoption was carried out

deliberately and consciously.

7. Earlier, vide order dated 18.12.2019, an interim injunction was granted in

favor of the Plaintiffand in response, the Defendants have filed the present

application. The Defendants have sought vacation of the interim order, inter-

alia, on the following grounds:

(i)The subject matter in question is not new, novel or original.

(ii)Th