Action Const. Equipment P. Ltd. & ... vs Escorts Const. Equipment Ltd.& ...
1999 Latest Caselaw 300 Del

ORDER

Devinder Gupta, ACJ.

1. Against the order passed by learned Single Judge of this Court on 16.10.1998 in I.A.Nos.2460/98 and 4638/98 in civil Suit No.533/98, appeal has been preferred by the defendants appellants, which is pending consideration.

2. Learned Single Judge while staying the suit under Section 10 of the Code of Civil Procedure, preferred by respondents 1 and 2 till the disposal of Suit No.73/97 pending in the court of Subordinate Judge, Ist Jamshedpur proceeded to dispose of the application of respondents 1 and 2 filed under Order 39 Rules 1 and 2 C.P.C. and of the appellants filed under Order 39 Rule 4 C.P.C. thereby restraining the defendants appellants from manufacturing, selling or offering for sale Pick-N-Carry Mobile cranes that are substantial imitation or reproduction of the industrial drawings of the plaintiffs or from using in any other manner whatsoever the technical knowhow, specifications or drawings of the plaintiffs till disposal of the suit.

3. On 23.10.1998 while entertaining the appeal and issuing show cause notice to the respondents that why appeal be not admitted , an interim order was passed permitting the appellants to carry out manufacturing process of cranes but directed that no sale of the same will be effected till the next date.

4. It is worth while to mention here that the respondents have brought the action against the defendants appellants complaining of infringement of copyright of its industrial drawings and passing off and also claiming damages and rendition of accounts but did not produce along with the suit its industrial drawings, of which infringement is alleged. Learned Single Judge observed that in view of the submissions made in para 23 of the plaint no adverse inference could be drawn against the plaintiffs for nonproduction of the drawings at this stage. The question to be decided in the pending appeal is that whether or not the impugned order is justified. During the pendency of the appeal, with the consent of parties, Assistant Director, Automotive Research Association of India, Regional Centre, North House was appointed as Expert Local Commissioner to inspect the pick and carry mobile cranes manufactured or to be manufactured by the defendants appellants at its factory situated at Faridabad, in order to find out that whether these cranes manufactured by the appellants in any way infringe the right of the respondents. The order passed by the Court on 12.1.1999 reads:-

"With the consent of counsel for the parties, we appoint Assistant Director, Automotive Research Association of India, Regional Centre, North House No.643, Sector-18, Faridabad, Haryana, as Expert Local Commissioner to inspect the pick-and-carry mobile cranes manufactured or to be manufactured by the defendant appellant at its factory situated at Faridabad in order to find out whether these cranes manufactured by the appellant in any way infringe the patent right of the respondent. For that he be provided drawings as submitted by the parties in the Court of the years 1992 and 1998. In order to draw comparison whether the manufactured goods of the appellant are of the respondent's drawings of the year 1992 and 1998, the Expert can compare the ten components mentioned below:

i) The boom and slider assembly

ii) The lower structure assembly

iii) The main frame-axle assembly

iv) The differential housing

v) The pump coupling

vi) The pulley block assembly

vii) Gear box housing

viii)The wheel reductiongear

ix) The differential

x) The clutch assembly.

The Expert for the purpose of comparison can also enter the manufacturing unit of the appellant. The Expert will be within his right to examine the cranes manufactured by the respondent as well in their manufacturing unit. The appellant can sell the pick-and-carry cranes manufactured by him subject to the certificate of the Expert. If the Expert certifies that a manufactured crane infringes the patent right of the respondent that crane will not be sold. Such a report/certificate will be placed before the Court for final decision. Liberty is granted to either party to approach this Court against the certificate issued by the Expert. If the Expert issues certificate that there is an infringement, copy of the same may be supplied to both the parties. A letter of request be sent by the Registry to the Expert/ Local Commissioner appointed by this Court to take up the work, and if possible within 15 days start the work of inspection. Quarterly inspection report will be submitted by the Expert. Similarly, the appellant will submit quarter accounts of the sale of pick-and-carry cranes to this Court.

The fee of the Expert/Local Commissioner shall be borne in equal proportion by the parties. Let both the parties, on account deposit a sum of Rs.25,000/- each with the Expert directly. This order is passed without prejudice to the rights of the parties. Dasti."

5. The aforementioned order has not been carried out so far. Neither inspection could take place nor commission could be executed for various reasons. According to the respondents, there appeared to be a typographical error in as much as in place of word "copyright", word "patent right" has been mistyped. The Expert appointed by the Court, in its letter dated 15.1.1999 addressed to the Assistant Registrar (O) of this Court clarified that in the absence of the requisite expertise and competence with ARAI; to assess infringement or otherwise of the patent rights, it is unable to comply with the order of the Hon'ble Court.

6. C.M.4449/98 was moved by the appellants seeking permission to supply cranes manufactured by it of different specifications to the Government Departments, as listed in Annexure-A on such terms as the Court may consider fit and appropriate.

7. C.M.286/99 has been moved seeking modification of the order passed on 12.1.1999 and for fresh directions to the Expert/Local Commissioner with necessary amendments by changing the word "patent right" to "copyright".

8. C.M.281/99 has been moved by the appellants stating that the consent was given on 12.1.1999, but it is not agreeable for any other consent or for appointing a fresh Local Commissioner at this stage.

9. We have heard learned counsel for the parties and been taken through the record.

10. The suit is still at the trial stage. The order, which is operating in this case against the appellants is that it has been restrained from manufacturing, selling or offering for sale of the Pick-N-Carry Mobile cranes that are substantial imitation or reproduction of the industrial drawings of the plaintiffs or from using in any manner whatsoever the technical know-how, specifications or drawings of the plaintiffs. In other words, there is no restraint against the appellants from carrying on the aforesaid activities, namely, manufacture, sale or offer for sale with respect to Pick-N-Carry Mobile Cranes or any other Cranes in case the same are not in any manner infringing the alleged industrial drawings of the plaintiffs. It is appellants' case that about 700 cranes of different specifications had been sold out by appellants 1 and 2 prior to 16.10.1998. Even according to the respondents they had sold more than 3,000 cranes to different customers. It is yet to be ascertained in the suit that what are those industrial drawings of the plaintiffs/respondents qua which it claim to have the alleged copyright of which infringement is sought as none of the drawings had been produced on record. Appellants stand is that the Cranes, which are being manufactured by it are not the same or similar to those of the defendants respondents. The appellants have asserted that Cranes manufactured by it and sought to be supplied are entirely of different specifications. In these circumstances, there cannot be any objection in the appel-

lants manufacturing or selling those Cranes, which are not in any manner infringing the alleged industrial drawings of the plaintiffs. It will be for the plaintiffs/respondents to place sufficient material before the Court trying the suit in case it is noticed and grievance is made by the plaintiffs/respondents after the supplies are made by the appellants that there has been any infringement by the appellants of the order of injunction. Only on making of such a complaint and on proof of the fact that there has been infringement that action can be taken against the appellants. Till it is shown by the plaintiffs/respondents that what are those industrial drawings on which the alleged copyright is claimed it would not be permissible not to allow the appellants from proceeding ahead in manufacturing or selling or supplying Cranes, which according to the appellants are not in any manner offending the alleged industrial drawings of the plaintiffs/respondents. At the most appropriate directions can be issued to the appellants to maintain full record of all the cranes manufactured and delivered by it including technical drawings thereof and also to file the same in Court.

11. Accordingly, we hereby clarify and direct that it will not be impermissible for the defendants /appellants to manufacture, sell or offer for sale Pick-N-Carry Mobile Cranes that are not substantial imitation or reproduction of the alleged industrial drawings of the plaintiffs. This of course will be subject to the appellants' maintaining true and faithful record of the accounts of the Cranes manufactured and supplied with complete details thereof including technical drawing to be filed before the learned Single Judge after every quarter. Ordered accordingly.

12. A grievance was made during the course of arguments and as is apparent from record that the plaintiffs/respondents in order to stall and create hurdles in the appellants' business have been approaching the appellants suppliers or issuing notices to them we hereby direct that in case the plaintiffs/respondents would feel aggrieved on the ground that there has been violation by the appellant of the Court's direction, it will be at liberty to take out appropriate proceedings by bringing it to the notice of the trial court and accordingly the plaintiffs/respondents shall restrain itself from approaching the appellants' suppliers in any manner, which might have the effect of or cause interference in the business of the appellants.

13. As the appellants have not given its consent for appointment of fresh Local Commissioner and at this stage we are also of the view that for deciding this appeal, it will not be necessary to appoint fresh local commission, when the earlier one has declined to carry out the commission and for that reason also no further directions are required for modifying the order dated 12.1.1999.

14. C.Ms.4449/98, 281/99 and 286/99 stand disposed of.

15. C.M.7400/98 to be taken up along with the main appeal.