2008 ALL SCR 2078
SUPREME COURT

S.H. KAPADIA AND B. SUDERSHAN REDDY, JJ.

Garware-Wall Ropes Ltd. Vs. A. I. Chopra Engineers & Contr. & Anr.

Civil Appeal No.4762 of 2008

1st August, 2008

Civil P.C. (1908), O.39, Rr.1, 2 - Patents Act (1970), S.100 - Injunction - Violation and infringement of plaintiffs patented product for more than two decades - High Court granting injunction ignoring that patented product was in use for more than two decades - Judgment of High Court set aside and case remitted for decision afresh. (Paras 4, 5)

JUDGMENT

JUDGMENT :- Leave granted.

2. This Civil appeal is filed by the original plaintiff against the order dated 19th December, 2007 passed by the Bombay High Court (Nagpur Bench) in A.O. No.83/2007.

3. The appellant had filed a suit for a declaration that respondent herein is not entitled to manufacture, sell, use etc. of offer for sale the product patented in its favour as GSWR and Spiral Lock Systems bearing Patent Nos.196240 and 201177.

4. In the entire dispute, the main point which arises for determination is whether the product patented as GSWR and Spiral Lock Systems are allegedly in use and, in fact, being used for more than two decades. This aspect is crucial in the matter of injunction at the interlocutory stage. This aspect has not been gone into by the High Court. In our view, the issue goes to the root of the matter atleast on the question of grant of refusal of injunction. The matter is pending before the trial Court even today. But the urgency is that the respondent herein would suffer grave prejudice if injunction was to be granted as he would like to offer a bid to the railways. The appellant is his competitor.

5. Since this aspect has not been gone into by the High Court in its impugned judgment, we hereby set aside the impugned judgment and we request the High Court to decide the said A.O. No.83/2007 afresh in accordance with law, including the question of the scope and effect of section 100 of the Patents Act, 1970. All contentions in this regard are expressly kept open.

6. Interim order dated 13th May, 2008 passed by this Court will continue to operate for three weeks from today. In the meantime, the appellant herein may take such steps as it may be advised for seeking interim relief on expiry of the said period of three weeks.

7. Civil Appeal is disposed of accordingly.

No order as to costs.

Ordered accordingly.