Allahabad High Court

R.N. Gupta & Co. Ltd. Jasola New ... vs M/S Action Construction ... on 27 May, 2016

Bench: Vivek Kumar Birla




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 24
 
Case :- FIRST APPEAL FROM ORDER No. - 636 of 2016
 
Appellant :- R.N. Gupta & Co. Ltd. Jasola New Delhi
 
Respondent :- M/S Action Construction Equipments Ltd. Dudhola & 3 Others
 
Counsel for Appellant :- Manu Kahre
 
Counsel for Respondent :- Samit Gopal
 

 
Hon'ble Vivek Kumar Birla, J.

Heard Sri Ajay Sahani, learned counsel assisted by Sri Manu Khare and Sri Rahul Rajput, learned counsel for the appellant and Sri Shashi Nandan, learned Senior Counsel assisted by Ms. Sangeeta Sondhi and Sri Samit Gopal, learned counsel appearing for the respondent no. 1 and perused the record.

This appeal under Order 43 Rule 2 of the Civil Procedure Code (herein after referred to as 'CPC') has been filed by the defendant-appellant challenging the order dated 21.1.2016 passed by the Additional District Judge/Special Judge (SC/ST Act), Gautam Budh Nagar in C.S.(O.S.) No. 2 of 2015 (M/s Action Construction Equipments Limited vs. R.N. Gupta & Company Limited & others). It has further been prayed that the aforesaid suit be ordered to be transferred to this Court. By the order dated 21.1.2016, learned Court below has allowed the interim injunction application 6-C under Order 31 Rules 1 and 2 CPC in favour of the plaintiff-respondent and has restrained the defendant-appellant and their legal representatives and employees from manufacturing, trading and selling the registered design nos. 254816, 254817, 254819, 254823, 254825, 254826, 254818 and 254827 all dated 26.6.2013.

The facts of the present case in brief are that the plaintiff-respondent filed a suit for permanent injunction against the defendant-appellant and one M/s Navrang Constructions Private Limited-proforma respondent no. 2 herein with the allegation that the plaintiff-respondent is an innovator and legal proprietor of several designs in regard to tower cranes and its parts and which designs, according to the plaintiff-respondent, were new and original and were not previously published on the date of their application of registration i.e. 26.6.2013, which was granted by the Controller of Design, Kolkata in its favour for a period of ten years from the aforesaid date. The suit for injunction was filed primarily in the light of provisions of Section 22 of the Designs Act, 2000 (hereinafter referred to as the 'Act, 2000') being C.S.(O.S.) No. 2 of 2015 in the Court of Additional District Judge, Gautam Budh Nagar on 6.11.2015 against the appellant for an alleged infringement of the aforesaid 8 registered designs and also for reliefs from unfair competition, rendition of accounts, delivery etc. on the allegation that the tower cranes and their parts manufactured and are marketed by the defendant-appellant were an obvious and fraudulent imitation of the plaintiff-respondent's above noted registered designs. Along with the said suit, an application for interim injunction being paper no. 6-C was also filed under the provisions of the Order 39 Rules 1 and 2 read with Section 151 CPC.

In the plaint case, it was stated that plaintiff being company was incorporated in the year 1995 and Research & Development Team was constituted and started developing and designing cranes. It was claimed that in the year 1993 based on its indigenous "Know-how" launched its tower cranes, commercial production of the said tower cranes was commenced and ever since the plaintiff-company are manufacturing and marketing the said tower cranes and is the market leader in the entire country. Large number of big companies including nationalized as well as foreign companies have been mentioned to which such tower cranes and their parts are being sold. It was also stated that for the last 20 years since 1997 the company is operating on independent basis and manufacturing models of Mobile Tower Cranes and Tower Cranes since 2010. It was further stated that the plaintiff has developed the noval design and apply that design to its industrial products and also get them registered under the Act, 2000. The suit was filed with the allegation against the defendant no. 1 (appellant herein) that it has made complete copies or substantial and colourable imitation of the tower cranes and its parts and that the defendant is infringing the design registration of the plaintiff in regard to tower cranes. It was further alleged that the defendant is infringing tower cranes, there is similarity in design of the cranes parts, which are being manufactured by defendant in infringement of design registered with the plaintiff. Detailed narration was given in the plaint and suit was filed with the following prayers:

"A. Pass a decree of permanent injunction restraining the Defendant No. 1 & 2, its directors, principles, proprietor, partners, assigns, officers, employees, agents, servants, distributors, dealers, franchisees, representatives by passing a decree of permanent injunction from manufacturing, assembling, offering for sale, advertising, supplying, leasing, selling or in any manner dearling with Tower cranes and/or Tower cranes parts that are a slavish and obvious imitation of the Plaintiffs registered design (bearing design no. 254816, 254817, 254819, 254823, 254825, 254826, 254818 and 254827) so as to result in infringement of the registered design of the plaintiff.

B. Pass a decree of permanent injunction restraining the Defendant No. 1 & 2, its directors, principles, proprietor, partners, assigns, officers, employees, agents, servants, distributors, dealers, franchisees, representatives restraining them from contacting the plaintiff's employees with an intent to unfairly complete with the Plaintiff;

C. Pass a decree of rendition of accounts against the defendants calling upon the defendants to render true and correct accounts of the profits earned by the defendants on the sale of the products in question. The plaintiff is tentatively paying the court fees on an amount of Rs. 200.00 and undertake to file additional court fee if on appropriate rendition of accounts by the Defendants, a higher amount is found to be due and is directed by this Hon'ble Court.

D. Pass a Decree of delivery up of all the infringing tower cranes, Tower Crane Parts, marketing, promotional and advertising materials that bear or incorporate the infringing designs or any other design similar thereto;

E. Deliver to the plaintiff's attorney's or representatives, a list containing the names, addresses, phone numbers, e-mail addresses and any other identifying information for all persons and their companies to whom the Defendants have distributed, sold, supplied or circulated products or product parts or marketing, promotional or advertising materials that bear the plaintiff's registered designs (bearing design no. 254816, 254817, 254819, 254823, 254825, 254826, 254818 and 254827) or any other design similar thereto;

F. Award Costs of the suit to the plaintiff;

G. Pass any further order(s) in favour of the plaintiff as this Hon'ble Court may deem fit and proper in the interest of justice."

Interim injunction application was filed broadly on the allegation made in the plaint. Large number of documents were also filed on behalf of the plaintiff, which, as and when required, shall be referred to subsequently.

Notice was issued to the defendant on the interim injunction application and a reply was filed by the defendant (appellant herein). In the reply, the defendant-appellant has stated that the contents of paragraph 1 of the application are wrong and specifically denied. It is denied that the defendant has infringed the plaintiff's copyrights in designs pertaining to Tower Cranes and Tower Crane parts. It was further stated that the contents of paragraph 2, 4 and 5 of the application are wrong and are specifically denied. It is denied that the plaintiff acquired knowledge of the marketing and sale of the defendants machinery only in September 2015. The defendant is a company that was established in 1948, and has been a dominant figure in the market for construction equipment ever since. The plaintiff have been aware of the use of the designs in question by the defendants since it was first installed in NCR in October 2014, in the same builder site as that of the plaintiff. Since no action was taken during this time, the Plaintiffs have lost the right to claim interim relief against the defendant.

Denying the allegations made in the application for interim injunction application in paragraphs 4, 5 and 6, it was categorically stated that the plaintiff's design are not significantly distinguishable from earlier known designs and therefore, are spurious and invalid in the eye of law. It was also categorically claimed that the design registration numbers mentioned by the plaintiff are not new and original designs and as such, are not registerable under the Designs Act and are liable to be cancelled as per the provisions of the Section 19 of the Designs Act, 2000. It was also stated that at least since the year 2007 the plaintiff has copied the design of tower cranes and parts thereof from a Chinese Company 'Zoomlion' as it is clear from the pamphlets, brochures and catalogs of the plaintiff and Zoomlion, which are publically available with the customers and distributors and copies of some of them were filed in the present proceedings. It was submitted that since the design numbers of the plaintiff were also already in the public domain prior to the date of registration of the said design by the plaintiff, the plaintiff cannot claim any exclusive right on the same and thus they are not new and original designs, therefore, the question of piracy by the defendant does not arise.

A prayer, therefore, was made that the application for interim injunction be dismissed with heavy cost and it was categorically prayed that the design registration numbers which have been mentioned in the plaint be cancelled and declared null and void.

For the purpose of dealing with the appeal in hand, it is necessary to make reference to paragraphs 4, 5 and 6 of the reply filed by the appellant-defendant, which are quoted as under:-

"4. That the contents of paragraph 6 of the Application are wrong and specifically denied. It is submitted that the Plaintiffs designs are not significantly distinguishable from earlier known designs, or combinations of the earlier know designs, and are, therefore, spurious and invalid in the eyes of law. The design of the tower crane is a common design structure for every machine built, no individual person can claim a right over it. The defendants are therefore not infringing their designs.

5. That the contents of paragraph 7 of the Application are wrong and specifically denied. It is pertinent to note that the design registration numbers mentioned by the plaintiff in the paragraph under the reply are not new and original designs and as such are not registerable under the designs act and are liable to be cancelled as per the provisions of the Section 19 of the Designs act 2000. It has come to the knowledge of the defendants that the plaintiff was selling tower cranes and parts there of which are the subject matter of the said Design Registrations. At least as early as since year 2007, on market enquiry the defendants has also gathered the information that the plaintiff has copied the design of the tower crane and parts thereof, the subject matter of the present proceeding from a Chinese company Zoomlion. The said fact is evident from the pamphlets, brochures and catalogs of the Plaintiff and Zoomlion which are publically available with the customers and distributors. Copies of some of the pamphlets, brochures and catalogs of the Plaintiff and Zoomlion are filed in the present proceedings. It is further submitted that the plaintiff has not only copied Zoomlion tower crane design but has also copied the photograph appearing on the Zoomlion catalog.

6. That the contents of paragraph 8 of the Application are wrong and specifically denied. As mentioned in the preceding paragraph that the subject matter of referred design numbers of the plaintiff was already in the public domain prior to the date of registration of the said design by the plaintiff. The plaintiff cannot claim any exclusive right on the same. As these referred designs of the plaintiff were already in the public domain and are not new and original designs. The question of designs being pirated by the defendants does not arise. It is further submitted that the plaintiff has no case whatsoever and hence there can be no relief which could be granted to the plaintiff. It is also denied that the balance of convenience lies in the favour of plaintiff and against the defendant. It is further submitted that the designs of the defendant are not infringing that of the Plaintiff, and the defendant is only providing fair competition to the Plaintiff in the market."

(Emphasis supplied)

Along with the reply, the appellant-defendant annexed the brochure of the plaintiff-company for the years, 2007, 2009, 2010, 2011, 2012 and 2013 and also online Zoomlion brochure to indicate that the same tower crane is being sold by the plaintiff-company since the year 2007 and apart from that it is only a copy of the tower crane of Zoomlion Company using the designs as registered by the plaintiff.

Submissions of Sri Ajay Sahani, learned counsel for the defendant-appellant are two fold, one, that since a defence under Section 19 of the Act, 2000 was categorically taken before the Court below while filing the reply in response to the interim injunction application filed by the respondent-plaintiff, in view of the provisions of Section 22 (4) of the Act, 2000, the Court of District Judge become functus-officio and could not have proceeded with the case any further and the case was liable to be transferred to the High Court. Thus, his submission in other words is that as soon as a defence under Section 19 of the Act, 2000 is taken in reply, the Court below become functus-officio and the order impugned herein dated 21.1.2016 is totally without jurisdiction. The second argument is on merits of the case that interim injunction has wrongly been granted, inasmuch as the documents filed in support of the reply to the interim injunction application clearly indicated that the design is not new and the tower crane being TC-5040 is admittedly being sold since the year 2007 by the plaintiff-company, and that broadly speaking, none of the ground for grant of interim injunction i.e. prima facie case or balance of convenience or irreparable loss and injury has been made out. Arguments on merits, if required, shall be referred to subsequently.

Per contra, Sri Shashi Nandan, learned Senior Counsel appearing for the plaintiff-respondent has submitted that question of transfer of a case under Section 22(4) of the Act, 2000 was never pleaded or argued before the Court below so there was no necessity to transfer the case and the Court below has rightly proceeded to decide the interim injunction application. He further submitted that even otherwise, on question of transfer a case to the High Court under Section 22(4) of the Act, 2000, there has to be a prima facie satisfaction before transferring the case to the High Court by the trial Court and there cannot be any automatic transfer of the case. Elaborating the same he further submitted that even if it is a case of inherent lack of jurisdiction unless a plea is taken, the Court has jurisdiction to proceed further, and that for transfer a prima facie satisfaction has to be recorded, which was prima facie found to be against the defendant-appellant. It was further submitted that now the defendant-appellant has already invoked Section 22(4) of the Act, 2000 by filing an application under the aforesaid Section on which 28.5.2015 is the date fixed and therefore, this Court should not entertain the prayer for transfer. It was further submitted that the defence of Section 19 of the Act of 2000 may be raised in the writ petition and any reply to an application under Order 39 Rules 1 and 2 CPC and the grounds raised therein did not constitute defence and that supplement and incidental procedure are not part of the main proceeding and as such any defence taken in reply to the interim injunction application do not constitute the defence so as to transfer the suit to the High Court by the trial Court. It was further submitted that even the defence taken in the reply of the interim injunction application, there was no sufficient material so as to attract Section 22(4) of the Act, 2000. On merits it was submitted that the Court below has recorded a finding on all the three points, which are necessary for grant of injunction in favour of the plaintiff and the Court below has categorically found that there was a prima facie case in favour of the plaintiff; the balance of convenience is also in favour of the plaintiff; and that in case no injunction is granted, the plaintiff shall further suffer irreparable loss and injury as it is a case of violation of intellectual property rights.

For deciding the controversy in hand, it is necessary to refer certain provisions of the Designs Act, 2000, which are quoted as under:

"2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,-

(a) "article" means any article of manufacture and any substance, artificial, or partly artificial and partly natural; and includes any part of an article capable of being made and sold separately;

(b) .............

(d) "design" means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) of any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957 (14 of 1957);

(e) ......................

4. Prohibition of registration of certain designs.- A design which-

(a) is not new or original; or

(b) has been disclosed to the public anywhere in India or in any other country by publication in tangible form or any use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration; or

(d) comprises or contains scandalous or obscene matter,

shall not be registered.

11.Copyright on registration.- (1) When a design is registered, the registered proprietor of the design shall, subject to the provisions of this Act, have copyright in the design during ten years from the date of registration.

(2) If, before the expiration of the said ten years, application for the extension of the period of copyright is made to the Controller in the prescribed manner, the Controller shall, on payment of the prescribed fee, extend the period of copyright for a second period of five years from the expiration of the original period of ten years.

19. Cancellation of registration.- (1) Any person interested may present a petition for the cancellation of the registration of a design at any time after the registration of the design, to the Controller on any of the following grounds, namely:-

(a) that the design has been previously registered in India; or

(b) that it has been published in India or in any other country prior to the date of registration; or

(d) that the design is not registerable under this Act; or

(e) that it is not a design as defined under clause (d) of section 2.

(2) An appeal shall lie from any order of the Controller under this section to the High court, and the Controller may at any time refer any such petition to the High Court, and the High Court shall decide any petition so referred.

22. Pirarcy of registered designs.- (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 license 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.

(4) Notwithstanding anything contained in the second proviso to sub-section (2), where any ground on which the registration of a design may be cancelled under section 19 has been availed of as a ground of defence and sub-section (3) in any suit or other proceeding for relief under sub-section (2), the suit or such other proceeding shall be transferred by the Court, in which the suit or such other proceeding is pending, to the High Court for decision.

(5) When the court makes a decree in a suit under sub-section (2), it shall send a copy of the decree to the controller, who shall cause an entry thereof to be made in the register of designs.

(Emphasis supplied)

Learned counsel for the defendant-appellant has relied on various decisions, which are quoted as under:

State of Uttar Pradesh & others vs. Dr. Anupam Gupta, etc., AIR 1992 SC 932. Relevant extract of paragraph 10 is quoted as under:

"10. Dr. Rajiv Dhavan and Sri Satish Chandra, learned senior counsel for the Doctors, in fairness, also did not dispute that prescription of 50% minimum marks as eligibility criteria to seek admission into the postgraduate courses to be in any way arbitrary. However, Dr. Dhawan contended that the initial press note inviting applications for the entrance examination did not say that 50% minimum marks in the entrance examination as a condition for admission into the post-graduation. G.O. 4215 only mentions 50% of qualifying M.B.B.S. marks and 50% in entrance as eligibility. Therefore, denial of admission for non-securing 50% cut off in entrance examination is illegal. The doctrine of promissory estoppel was also passed into service. It is further contended that the Doctors satisfied the criteria laid on G.O. 4215. The High Court's order was justified on this base. Shri Yogeshwar Prasad, learned senior counsel for the State contended that this contention was not raised in the High Court and for the first time it cannot be raised. We find no force in the contention of the State. Though it was never raised, nor argued, since it is a pure question of law arises from record, it can be gone into. But on careful consideration of the record............"

(Emphasis supplied)

Foreshore Co-operative Housing Society Limited vs. Praveen D. Desai (Dead) thr. Lrs. and others, AIR 2015 SC 2006. Relevant paragraph 43 is quoted as under:

"43. It is well settled that essentially the jurisdiction is an authority to decide a given case one way or the other, Further, even though no party has raised objection with regard to jurisdiction of the court, the court has power to determine its own jurisdiction. In other words, in a case where the Court has no jurisdiction; it cannot confer upon it by consent or waiver of the parties.

(Emphasis supplied)

Metco Polymers Pvt. Ltd. vs. Madhu Inflatables Pvt. Ltd., (2005) 4 MLJ 294. Relevant paragraph 14 is quoted as under:

"14. The expression "any other proceeding" as contained in Section 22(3) is to be understood in a wider sense and the application for interim injunction can be considered as a proceeding within the meaning of Section 22 (3) of the Act. The restricted meaning given to the term "proceeding" in some matter, particularly, in the context of Section 115 of the Code of Civil Procedure may not be applicable. Any other interpretation of Section 22(3) may create an anomaly inasmuch as even though the defendants would be able to resist the suit by raising defences envisaged under Section 22(3) read with Section 19, they would not be able to resist an interim application for injunction."

(Emphasis supplied)

M/s Premier Elmech Systems (P) Ltd. vs. M/s V-Guard Industries Pvt. Ltd., ILR 2013 (4) Kerala 620. Relevant paragraph 5 is quoted as under:

"5. Sub section (3) and (4) of Section 22 of the Act reads thus:

(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.

(4) Notwithstanding anything contained in the second proviso to sub-section (2), where any ground on which the registration of a design may be cancelled under section 19 has been availed of as a ground of defence and sub-section (3) in any suit or other proceeding for relief under sub-section (2), the suit or such other proceeding shall be transferred by the court, in which the suit or such other proceeding is pending, to the High Court for decision.

Though learned counsel for the first respondent plaintiff urged before me that no defence capable of being considered as a ground on which the registration of a design obtained by plaintiff over his stabilizer for its cancellation had been set forth by the appellant (first defendant), I cannot subscribe to that view. Contentions raised in the written statement, paragraph 2 reproduced earlier, would demonstrate that the first defendant had taken a specific ground under section 19 of the Act for cancellation of the registration to resist the suit claim. Section 19 of the Act dealing with the cancellation of the registration states the grounds on which a person may present a petition before the Controller for cancellation of a registration of a design after it has been so registered. One among the grounds provided for such cancellation of the design registered is that the design is not a new or original design as provided under clause (c) of Section 19 of the Act. The defence taken by the appellant (first defendant) resisting the suit clearly makes out a case that he has impeached the design in favour of the plaintiff contending that it is not new or an original design. That is sufficient to enable him to seek cancellation of the design under section 19 of the Act. When such a defence has been taken in the suit filed under sub-section (2) of Section 22 of the Act, the mandatory prescription under sub-section (4) of that Section has to follow and the court before which the suit or other proceeding is pending has to transfer it to the High Court for decision. The court before which the suit or other proceeding is pending cannot determine the merits of the defence nor even conduct an inquiry over such defence and it has to comply with the statutory prescription, learned District Judge after taking evidence has adjudicated the disputes and granted a decree in favour of the plaintiff. The decree so passed has to be interfered with and the case has to be remitted to the court below to follow the statutory prescription under sub section (4) of Section 22 of the Act."

(Emphasis supplied)

M/s. Escorts Construction Equipment Ltd. vs. M/s. Gautem Engineering Co. & Anr., AIR 2010 J&K 13. Relevant paragraphs 8, 13, 14, 15, 16, 17 and 18 are quoted as under:

"8. It was further submitted that under sub-clause (3) of Section 22 of the Act of 2000, 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 is available as a ground of defence. It was stated that when the respondents have filed the written statement and taken the defence as mentioned in Section 19 of the Act of 2000, then, the Court below has not power to try the suit and the same has to be transferred to this Court.

13. A perusal of the above shows that respondents in their written statement has taken the defence as referred to in Section 19 of the Act of 2000. Therefore, once such a defence is taken, then in terms of sub-section (4) of Section 22 of the Act of 2000, the Court below has no power to decide the revocation of the design and it is only this Court which has to adjudicate upon the matter and decide as to whether the design is to be cancelled or not. The Court below, thus, has committed a legal error in not transferring the case to this Court for adjudication after the application in this regard was filed by the petitioner.

14. In 2001 PTC 775 (Ker): (2000 CLC 1517), Low Heat Driers (P) Ltd. v. Biju George, the Kerala High Court under similar circumstances while dealing with a matter under Patents Act, 1970, and interpreting Section 104 of the above Act, which section is pari materia to Section 22(4) of the Act of 2000, observed as under:-

"4. Section 104 of the Patent Act reads as follows:

"No suit for a declaration under Section 105 or for any relief under Section 106 or for infringement of a patent shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit; provided that where a counter claim for revocation of the patent is made by the defendant, the suit, along with the counter claim, shall be transferred to the High Court for decision."

What can be gathered from the section is that once challenge is made with the regard to the patent claim by the plaintiff and its revocation is sought for by the defendant, or further things should be done only by the High Court. If interlocutory applications filed in case are dealt with before considering the question of existence of the patent itself that will affect the right of the defendant. According to me, what is obvious from the section is that once a counter claim seeking revocation of patent is filed by the defendants the District Court will loose jurisdiction to proceed with the matter further. That deprivation of power will necessarily include the power to deal with all interlocutory applications pending as on that day........."

15. In A.O. No. 49 of 2008 titled M/s. Lambda Eastern Telecommunication and others vs. M/s. Acme Tele Power Private Ltd., decided on 19th of March 2008, the High Court of Uttarakhand, observed as under:-

"Actually, keeping in view the proviso to Section 104 (supra), this Court at the same time would like to observe that the District Judge at the very moment the counter claim stood filed in this Court, ceased to have any jurisdiction to deal with the suit or any application arising out of the same or relating thereto. The proviso to Section 104 clearly and unmistakably suggests that the moment the counter claim for revocation of the patent is filed, the suit along with the counter claim, etc. shall be transferred to the High Court for decision. In other words, what the proviso unmistakably suggests is that the moment counter claim for revocation of patent is filed, the jurisdiction for deciding the suit along with the counter claim vest with the High Court. The legislative intent is more discernibly clear by a reference to Section 64 of the Act, which also states that revocation of a patent upon a counter claim can be done by a High Court only and not by any counter inferior to the High Court. It is based on such clear legislative intent as well as legislative mandate that I have no hesitation coming to the conclusion that the moment the counter claim for revocation is filed, the District Court ceases to have the jurisdiction to deal with the suit and matter immediately is required to the transferred to the High Court for hearing and decision. In other words, it is the High Court which shall now hear and decide the Temporary Injunction Application.........."

16. As indicated above, Section 22(4) of the Act of 2000 is pari materia to Section 104 of the Patents Act, 1970. Therefore, once the suit was instituted by the petitioner and the respondents took the defence in their written statement as referred to in Section 19 of the Act of 2000, and thereafter petitioners having filed the application under Section 22(4) of the Act of 2000, then, as observed above, the power to decide with regard to the revocation of the design lies only with this Court.

17. So far as the plea of Mr. Sethi, learned Sr. Counsel for respondents, which stands noticed above is concerned, the said plea is found to be not sustainable, because once the respondents have taken the grounds as mentioned in Section 19 of the Act of 2000, the Court below ceases to have the jurisdiction to try the suit and it is only this Court which is to adjudicate upon the matter. The judgement cited by Mr. Sethi in support of his plea would be of no avail to him.

18. In view of the above, this petition is allowed. The record of the above titled suit along with the application for ad interim injunction shall stand transferred to this Court. The record shall be called for by a special messenger and the case be listed for consideration after two weeks."

(Emphasis supplied)

M/s. Lambda Eastern Telecommunication & Ors. vs. M/s. Acme Tele-Power Private Ltd. and Ors., AIR 2008 Utr 38. Relevant paragraphs 5, 6, 7, 8 and 9 are quoted as under:

"5. Mr. S.K. Bansal,for learned counsel appearing for the appellants took me through various provisions of the Patent Act,1970,particularly Section 3(f),Section 25(2),Section 64,Section 104 and Section 107. According to Mr. Bansal,the very arrangement or re-arrangement or duplication of the known devices functioning individually or with one another in a known way,does not amount to an invention within the meaning of the Patent Act,1970. He submitted that in terms of sub-section (2) of Section 25,the appellants have already objected to the grant of two Patents in favour of respondent No.1- plaintiff. Mr. Bansal, informed me and this is not disputed by the learned counsel appearing for respondent No.1 and is also borne out from the records of the case that in aforesaid pending suit,the defendants (appellants herein) have filed their counter -claim. Under S.64 of the Act,a patent can be revoked either on a petition filed by any person interested etc. or upon a counter-claim filed in a suit and in such a situation, the revocation of the patent has to be made by the High Court. Even though, u/S. 104, the jurisdiction to entertain and decide the suit for a declaration, etc. Or for any other relief relating to the infringement of a patent vests in a District Court, proviso to Section 104 clearly states that where a counter-claim for revocation of the patent is made by the defendant in the suit, the suit along with the counter-claim shall be transferred to the High Court for decision.

6. Section 104 of the Act for the ready reference is reproduced herein, which reads as under:-

"104. Jurisdiction- No suit for a declaration under Section 105 or for any relief under Section 106 or for any infringement of a patent shall be instituted in any Court inferior to a district Court having jurisdiction to try the suit:

Provided that where a counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter-claim, shall be transferred to the High Court for decision."

7. In Section 107 of the Act, it is clearly mentioned that in a suit for infringement of any patent, every ground on which the patent can/may be revoked under Section 64, shall be available as a ground for defence. Section 107 for ready reference is reproduced, which reads as under:

"107. Defences, etc., in suits for infringement- (1) In any suit for infringement of a patent every ground on which it may be revoked under Section 64 shall be available as a ground for defence.

(2) In any suit for infringement of a patent by the making, using or importation of any machine, apparatus of other article or by the using of any process or by the importation, use of or distribution or any medicine or drug, it shall be a ground for defence that such making, using, importation or distribution is in accordance with any one or more of the conditions specified in Section 47."

8. A very careful perusal of the impugned order dated 18th December, 2007 passed by the learned District Judge reveals to me that even while the counter-claim for revocation had been filed by the appellant- defendants on 8th September, 2007 in the trial Court, the learned District Judge did not take any notice of the said counter-claim and proceeded to decide and dispose of the Interim Injunction Application unmindful of the counter-claim. A combined reading of Sections 64, 104 and 107 and a reference to other relevant provisions of the Patent Act, 1970 leaves me in no manner of doubt that when a counter-claim for revocation of the patent is filed by the defendants in a pending suit, grant or refusal of a temporary injunction under Order 39 Rules 1 and 2, apart from other legal considerations has to be influenced by and linked with the merits of the counter-claim, because while deciding a Temporary injunction Application, the cardinal principles of prima facie case, balance of convenience and irreparable loss or injury, etc. have to be judged and applied both based upon the pleadings and the material accompanying the pleadings as well as the counter-claim for revocation. The learned District Judge, however, without at all considering the counter-claim, proceeded to grant ad interim injunction in favour of the respondent No. 1 - plaintiff in total disregard to the counter-claim and its merits, if any.

9. Actually, keeping in view the proviso to Section 104 (supra), this Court at the same time would like to observe that the District Judge at the very moment the counter-claim stood filed in his Court, ceased to have any jurisdiction to deal with the suit or any application arising out of the same or relating thereto. The proviso to Section 104 clearly and unmistakably suggests that the moment the counter-claim for revocation of the patent is filed, the suit along with the counter-claim, etc. shall be transferred to the High Court for decision. In other words, what the proviso unmistakably suggests is that the moment counter-claim for revocation of the patent is filed, the jurisdiction for deciding the suit along with the counter-claim vests with the High Court. The legislative intent is more discernibly clear by a reference to Section 64 of the Act, which also states that revocation of a patent upon a counter-claim can be done by a High Court only and not by any Court inferior to the High Court. It is based on such clear legislative intent as well as legislative mandate that I have no hesitation in coming to the conclusion that the conclusion that the moment the counter-claim for revocation of patent is filed, the District Court ceases to have the jurisdiction to deal with the suit and the matter immediately is required to be transferred to the High Court for hearing and decision. In other words, it is the High Court which shall now hear and decide the Temporary Injunction Application."

(Emphasis supplied)

Standard Glass Beads Factory and another vs. Dhar, AIR 1961 All. 101 (DB). Relevant paragraphs 4, 6 and 7 are quoted as under:

"4. Sec. 26 (1) of the Indian Patents and Designs Act enumerates the grounds upon which revocation of a patent in whole or in part may be obtained on petition to or on a counter-claim in a suit for infringement before a High Court; and sub-sec. (2) of this section reads thus:

"(2) A petition for revocation of a patent may be presented-

(a) by the Advocate General or any person authorised by him;

(b) by any person alleging-

(i) that the patent was obtained in fraud of his rights or of the rights of any person under or through whom he claims; or

(ii) that he or any person under or through whom he claims, was the true and first inventor of any invention included in the claim of the patentee; or

(iii) that he, or any person under or through whom he claims an interest in any trade, business or sole, within India, before the date of the patent anything claimed by the patentee as his invention."

Sec. 29 of the Act provides that

"29(1) A patentee may institute a suit in a District Court having jurisdiction to try the suit against any person who, during the continuance of a patent acquired by him under this Act in repect of an invention makes, sells or uses the invention without his license, or counterfeits it, or imitates it:

Provided that where a counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter claim, shall be transferred to the High Court for decision.

(2) Every ground on which a patent may be revoked under Sec. 26 shall be available by way of defence to a suit for infringement."

The averments relating to the appellants' counter-claim are set out in paragraphs 21 and 22 of their written statement. In these paragraphs it is alleged

(i) that the first respondent is not the true and first inventor of the process of manufacture,

(ii) that the invention claimed by the respondents was not, at the date of the patent, a new process of manufacture, and

(iii) that the patent was obtained fraudulently.

6. Two submission have been made on behalf of the appellants. The first is that the learned District Judge having ordered the transfer of the case to this Court by reason of the provisions of S. 29(1) of the Act had thereafter no jurisdiction to grant a temporary injunction; the second is that on the merits the order was not justified. In the view we take it is unnecessary for us to express an opinion on the second of these submission."

7. The proviso to S. 29 (1) directs that upon the defendant making a counter-claim:

"the suit, along with the counter-claim, shall be transferred to the High Court for decision."

The expression "shall be transferred" in our judgement means "shall stand transferred"; and the District Judge is left with no jurisdiction save to make such order as is necessary to secure the physical transfer of the records of the case to the High Court. If this meaning be not given to these words there will be an element of uncertainty both with regard to the time when the record of the case is to be sent to the High Court and to the powers of the District Court during the period which is allowed to elapse before the record is in fact transferred. That was not, in our opinion, the intention of the Legislature. We are accordingly of opinion that the order of the District Judge so far as it purported to grant an interim injunction is bad in law. The appeal accordingly succeeds and the order of the District Judge dated 23.12.1958, to the extent we have indicated and the order of Mr. Justice Vishnu Datt dated 21.1.1959, are set aside. The appellants are entitled to their costs."

(Emphasis supplied)

Other rulings relied on by the learned counsel for the defendant-appellant are related to the merits of the injunction granted by the trial Court, which shall be referred to subsequently, if so required.

Learned counsel for the plaintiff-respondent has also relied upon various decisions, which are noted as under;

In support of his argument that the plea under Section 19 of the Act must be raised in written statement, learned counsel has placed reliance on M/s Andslite Pvt. Ltd vs. Rupa Sujit Talwar, passed by the High Court of Delhi in CS (OS) No. 2624 of 2015 and I.A. No. 18250 of 2015. Relevant paragraph 2 is quoted as under:

"2. When the matter is taken up today, the learned counsel for the plaintiff submits that though the suit has been valued for the purposes of Court fee and jurisdiction at Rs. 20,01,000/-, the same is not to be transferred to the jurisdictional subordinate courts in view of the statutory provision of Section 22 (4) of the Designs Act, 2000 and as per the second proviso of Section 7 of the Ordinance, irrespective of its pecuniary value. He further submits that since the defendants have challenged the registrations of the designs in question, the suit has to be decided by a Commercial Division of the High Court which has the Ordinary Original Civil jurisdiction. Where a suit is filed for injunction to restrain the defendant from using a certain design, it is open to the defendant to raise a plea that the plaintiff is not the owner of the design and the design in question is not new or original, in the written statement as a defence or by filing of application for cancellation. Once the validity of the design is challenged either in the written statement as a defence or by filing of a separate cancellation petition, the suit if filed before the District Judge (District Court), the same has to be transferred to the Commercial Division of the High Court. Similarly, if the challenge in a manner is already pending in the High Court, the same has to be decided by the High Court's Commercial Division."

(Emphasis supplied)

In support of his argument, he has also placed reliance on Novartis AG and Anr. vs. Cipla Ltd., passed by the High Court of Delhi in CS (OS) No. 3812 of 2014 on 27th November, 2015. The relevant paragraph 22 is quoted as under:

"22. It is an undisputed fact that the present High Court exercises Ordinary Original Civil Jurisdiction. Before passing of the Ordinance, the suit for infringement of patent and designs which were being filed before the District Judge(s) of District Courts have been transferred to this Court, once the patent is challenged in the written statement by the defendants as a defence or by filing of the counter-claim under the Patents Act, 1970 and under Section 22(4) of the Designs Act, 2000. Various matters had been transferred by the District Courts from time to time to the High Court, who had received the same after pleading the defence in the written statement or a separate counter-claim filed by the defendants. Under these circumstances, it is quite clear that under any circumstances, such matters have to be heard and disposed of by the Commercial Division of the High Court which has the Ordinary Original Civil Jurisdiction irrespective of their pecuniary value."

(Emphasis supplied)

Kadambukattil Exports vs. Nilkamal Ltd., ILR 2013 (2) Kerala 545. The relevant paragraphs 7, 14, 15, 16, 17 and 18 are quoted as under:-

"7. What remains is whether in view of the contention petitioner has raised in its written statement concerning design No.219383, it is necessary that learned Additional District Judge should transfer the suit to the High Court for trial and disposal.

14. True that Sec.22(4) of the Act states that when a ground on which registration of a design may be cancelled is taken up as a defence, the District Court shall transfer the suit or proceeding to the High Court. Question is whether a mere plea that registration of a design is liable to be cancelled under any of the provisions of Sec.19 would oust jurisdiction of the District Court requiring it to transfer the suit or proceeding to the High Court for a decision or whether the District Court whose jurisdiction is ousted, must have the prima facie satisfaction of the fact situation which requires it to transfer the suit or proceeding to the High Court for a decision?"

15. The well known rules as to ouster of jurisdiction of the court is that ouster of jurisdiction is not to be readily inferred. The required conditions are to be made out. A statute ousting jurisdiction of a court has to be strictly construed.

16. Though relating to a reference under Sec. 125(3) of the Kerala Land Reforms Act (for short, "the KLR Act") it is held that the Civil Court can consider whether the plea raised by the party concerned is bonafide or genuine and that if the Civil Court is of the opinion that there is not even a remote possibility of the plea (under the KLR Act) being upheld, such court can proceed to dispose of the suit without resorting to a ference.

17. Though relating to a reference under Sec.125(3) of the Kerala Land Reforms Act (for short, " the KLR Act") it is held that the Civil Court can consider whether the plea raised by the party concerned is banofide or genuine and that if the Civil Court is of the opinion that there is not even a remote possibility of the plea (under the KLR Act) being upheld, such court can proceed to dispose of the suit without resorting to a reference.

18. Having regard to Sec.22(4) of the Act, there is no reason why I should adopt a different standard. It is not as if the moment the defendant raises a plea which would enable him for cancellation of registration under Sec.19 of the Act jurisdiction of the District Court is ousted. Since it is a matter ousting jurisdiction of the District Court, such court must have the prima facie satisfaction that its jurisdiction is ousted. If a view as pleaded by the petitioner and accepted by the Karnataka High Court in the decision cited Supra is taken, it is possible for any defendant to raise even unnecessarily and without any basis a plea falling under Sec.19 of the Act, thereby oust jurisdiction of the District Court and prolong the proceeding. I am not inclined to think, that is the purport of the exclusionary clause contained in Sec.22(4) of the Act. In that view of the matter, I respectfully disagree with the view taken by the Karnataka High Court (in the decision ented Supra) that when there is a plea falling under Sec.19 of the Act, jurisdiction of the District court is ousted. The District Court whose jurisdiction is sought to be ousted by the plea for cancellation of registration of design of the plaintiff must prima facie be satisfied that there is the possibility of the plea of defendant under Sec.19 of the Act being upheld and thus its jurisdiction is ousted. Nor I am impressed by the contention that the defendant need only make an application for cancellation of registration in the prescribed form and hence a plea for cancellation of registration of the design alone is sufficient to oust jurisdiction of the District Court. A defendant who applies for cancellation of registration under Sec.19 of the Act has to substantiate his claim in the application."

(Emphasis supplied)

In support of his argument that the grounds raised in the reply, an application under Order 39 Rules 1 and 2 CPC do not constitute the "defence", he has placed reliance on the decisions of Hon'ble Apex Court in Booz Allen and Hamilton Inc. vs. SBI Home Finance, AIR 2011 SC 2507 and Rashtriya Ispat Nigam vs. Verma Transport, AIR 2006 SC 2800.

I have considered the rival submissions, the relevant statutory provisions and the law as noted above.

Insofar as the question as to whether where any ground on which the registration of a design may be cancelled under Section 19 has been availed of as a ground of defence than the suit or any other proceedings for relief shall be transferred to the High Court is concerned, it cannot be disputed that the suit has been filed by the plaintiff taking plea and seeking relief under Section 22 of the Designs Act, 2000, which is clear from the prayer clause which have been quoted for this purpose only. It is also pertinent to note that earlier in the Design and Patents Act, there was a provision for filing suit only and now under Section 22 of the Designs Act, 2000, 'suit' or 'any other proceedings' has been provided. During course of argument, learned counsel for the respondent could not dispute the fact that the interim injunction application filed by the plaintiff would fall within the ambit of any other proceedings. Under Sub-section 2 of Section 22 of the Act would cover the reply filed to such an application, and if defence as available under Section 19 is taken, in my opinion, it would be covered by sub-section 4 of Section 22 of the Act. In this regard, I find support from the judgement referred in Metco Polymers Pvt. Ltd. (supra).

Undisputedly, suit for injunction when filed under Section 22, interim injunction application is filed only in the suit proceedings, and unless any written statement is called for and is filed, only the proceedings for interim relief are to proceed only on the basis of defence taken in reply. Sub-section 2 of Section 22 of the Act clearly recognizes proceedings for an injunction against the repetition of the violation of registered design. Sub-section 4 of Section 22 of the Act would, therefore, definitely cover the defence as covered under Section 19 of the Act taken in reply to the interim injunction application. Therefore, once such defence as available in Section 19 of the Act is taken in reply, Section 22 (4) would immediately come into play and the court shall have no jurisdiction to proceed further and shall have no option but to transfer the case to the High Court.

I find support from the law laid down by Hon'ble Division Bench of this Court in the case of Standard Glass Beads Factory (supra) whereby expression 'shall be transferred' was specifically held to mean 'shall stand transferred' and that the District Judge is left with no jurisdiction save to make such order as is necessary to secure the physical transfer of the records of the case to the High Court. It was specifically held by Hon'ble Division Bench that the order of the District Judge so far as it purports to grant an interim injunction is bad in law. Same principle applies here with full force. In the other cases also as relied upon by the learned counsel for the plaintiff-appellant, it clearly indicates that any defence as available under Section 19 of the Act is taken, the court below has no power to proceed further and the District Court will loose its jurisdiction to proceed with the matter further and this will include the power to deal with all interlocutory applications any further. The interim injunction application filed in the present case undisputedly falls within this category. Therefore, the proceedings shall be transferred by the Court to the High Court without proceedings any further on such interim injunction application.

From the law as discussed above, I find that the reliance placed on orders in the case of Novartis AG (supra), Booz Allen and Hamilton Inc. (supra) and Rashtriya Ispat Nigam (supra) on the issue that it is only when a defence is taken under Section 19 by filing written statement, the suit or other proceedings shall be transferred by the Court are of no held to the plaintiff-respondent. A perusal of the aforesaid rulings in the case of Novartis AG (supra) and Booz Allen and Hamilton (supra) would indicate that crux of the matter is that in case any defence as available under Section 19 is taken by the defendant in the suit proceedings, the proceedings will have to be transferred, whereas in the present case no written statement was called for and it was only a reply to the interim injunction application was called for and as such, the first opportunity available to the defendant was at the time of filing of the reply of the interim injunction application, which admittedly was availed of by the defendant in the present case by taking ground as available under Section 19 of the Act. The defence, as understood in the other two cases, would be for the purpose of full-fledged trial on merits by the Court and is not for the purpose of excluding or ousting the jurisdiction of the Court or transfer of the case from District Court to the High Court. As already held, the interim injunction application is covered under other proceedings for relief as provided under Section 22 of the Act, the movement ground under Section 19 has been availed of as a ground of defence, the same shall be transferred by the Court to the High Court. Therefore, it cannot be said that the transfer to the High Court can take place only when written statement is filed and prior to filing of the written statement all other proceedings, including consideration of interim injunction, can be gone into by the District Judge. This, as already discussed in the law noted above, would not be in consonance with the scheme of the Designs Act, 2000 wherein there is departure from the provisions of the earlier law prevailing in the field. More so, when along with "suit" words "or other proceedings for relief" have been consciously added by the legislature.

I also do not agree with the argument raised by the learned counsel for the defendant-appellant that the prima facie satisfaction has to be recorded by the District Court before transferring the matter and as such there was no illegality on the part of the District Court to proceed with the interim injunction application and that when the Court was not satisfied with the defence raised by the defendant, the court had rightly proceeded to consider the interim injunction application.

As already discussed above, a Division Bench of this Court in the case of Standard Glass Beads Factory (supra) had held that once such defence is taken, the expression 'shall be transferred' would mean that 'stand transferred' and the District Judge is left with no jurisdiction to proceed further save to make such order as is necessary to secure the physical transfer of the records of the case to the High Court and that the grant of interim injunction was also bad in the eye of law. I am respectful agreement with the law laid down by Hon'ble Court as noted above.

Apart from that, looking from another angle, in case it is left open to District Court to proceed further to record any satisfaction on the material filed on record in support of the ground taken by the defendant as available under Section 19, it would mean that the District Court would be entering into the jurisdiction of the Controller of the Designs as provided to him under Section 19 or of the High Court, in case any such proceedings for cancellation of registration are proceeded further by the Controller of Designs or are sent to the High Court. To my mind, the District Court can go only to the extent of satisfying itself as to whether ground, on which the registration of design may be cancelled under Section 19, has been availed as a ground of defence or not. It cannot go into the merits of the defence so taken by the defendant as it would amount to exceeding his jurisdiction, which can only be gone into by the High Court on transfer of the case to the High court as to whether there is any force or not in such defence taken by the defendant under Section 19 of the Act.

In such view of the matter, once, on bare reading of the reply filed to the interim injunction application, it is found that that a defence or ground under Section 19 is availed of, nothing further is to be seen by the District court and he has no option but to transfer the case to the High Court for decision including the interim injunction application.

Insofar as submission of the learned counsel for the plaintiff-respondent that no such plea regarding transfer of the case under Section 22 (4) was taken before the court below and now the same cannot be taken is concerned, suffice to note that it is pure question of law that arises from the record and it can be gone into in the present appeal. In this regard, I am supported by judgement of Hon'ble Apex court in the case of State of Uttar Pradesh & others vs. Dr. Anupam Gupta (supra) and Foreshore Co-operative Housing Society Limited (supra).

Learned counsel for the respondent has heavily relied on the decision in the case of Kadambukattil Exports vs. Nilkamal Ltd. (supra) to contend that a prima facie satisfaction must be regarded before the transfer of the case.

I find that in the aforesaid rulings, the question was discussed and finding was recorded on the basis of law relating to a reference under Section 125(3) of the Kerala Land Reforms Act on an entirely different footing. In the said case, it is held that the Civil Court can consider as to whether the plea raised by the party concerned is bona fide or genuine and that if the Civil Court is of the opinion that there is not even a remote possibility of the plea being upheld, such court can proceed to dispose of the suit without resorting to a reference. In the present case, Section 22 (4) of the Act clearly provides that once such ground under Section 19 is availed of, the Court shall transfer the suit to the High Court and as held by the Hon'ble Division Bench of this Court the expression 'shall be transferred' would mean 'shall stand transferred' and it was categorically recorded that even the order of the District Judge so far as it purports to grant interim injunction is bad in the eye of law. Thus, the aforesaid rulings is clearly distinguishable. I am in respectful disagreement of the same.

In view of the discussions and in view of the conclusions drawn on the first issue that since a ground as available under Section 19 of the Designs Act, 2000 was categorically taken as defence before the court below while filing the reply in response to the interim injunction application filed by the plaintiff-respondent, in view of the provisions of Section 22(4) of the Act, the court below has no option but to transfer the suit to the High Court. The District Judge is left with no jurisdiction save to make such order as is necessary to secure the physical transfer of the records to the High Court and orders on the interim injunction application is without jurisdiction and is bad and is liable to be set aside only for this reason alone.

In view of the aforesaid discussions, I, therefore, hold that learned court below has committed an error of law in going into the merits of the defence as taken by the defendant-appellant on the grounds as available under Section 19 of the Act for the purpose of assuming or retaining jurisdiction for deciding the interim injunction application.

In view of the above, it is not necessary to go into the arguments of the learned counsel for the parties on the merits of the case as to whether the court below was justified or nor in granting interim injunction.

The appeal is, therefore, allowed. The impugned order 21.1.2016 passed by the Additional District Judge/Special Judge (SC/ST Act), Gautam Budh Nagar in C.S.(O.S.) No. 2 of 2015 (M/s Action Construction Equipments Limited vs. R.N. Gupta & Company Limited & others) is hereby set aside. The court below is restrained in proceedings further with the matter and is directed to transfer the records of the case to the High Court at the earliest.

No order as to costs.

Order Date :- 27.5.2016

Abhishek