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TMI Blog2002 (5) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... ny has various divisions including an engineering division. Defendant No. 1, Sh. Gurmit Singh has been working in the capacity of Managing Director of the plaintiff company since its inception. Defendants No. 2 and 3, Sh. Digvijay Singh and Sh. Anoop Singh are the sons of Defendant No. 1 Defendant No. 2 has been working in the capacity of Vice-President (Operations) and also in charge of engineering and component division, whereas Defendant No. 3 has been working as Manager (Sales). Defendant No. 4 to 10 are the employees of the company and have been working in various capacities in the engineering division of the plaintiff company. The engineering division has been manufacturing its own designed filter manufacturing and testing machines. The plaintiff company has invested substantial amounts in the development and know-how of skill, knowledge, technique and mechanism. On the basis of its know-how, its engineering division has launched its own concepts and drawings of he various filter manufacturing and testing machines. It is claimed that the industrial drawings and manufacturing process, names of suppliers and certain parts used in the machinery constitute the trade secrets of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturing selling, offering for sale or in any way dealing in the machines similar to those manufactured by the plaintiff company. III. restraint against Defendants from infringing upon the plaintiffs copyright or exploiting the plaintiffs trade secrets relating to plaintiff products, suppliers, customers and dealers, etc. IV. directions for restraining the Defendants from approaching, contacting or soliciting any orders from the plaintiffs customers for products as manufactured by plaintiff company. V. directions to the Defendants to return to the plaintiff company all documents and records, information and know-how in the form of drawings, designs, manuals, software, etc. VI. restrain against the Defendants from entering the plaintiff premises. VII. directions to the Defendants to deliver back to the plaintiff and its record relating to the fully automatic CNC controlled pleating machine, which was developed by the plaintiff company. 5. On summons of the suit and notice of the application being served, Defendants No. 1 to 3 appeared on 30th May, 2002. At the request of the plaintiff, the matter was adjourned to 31st May, 2002 as the plaintiff wanted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engineering division of he company intending to use them for manufacturing products similar to that of the plaintiff has infringed their copyright. It is also contented that Defendants No. 1 to 3 in conspiracy with Defendants No. 4 to 10 being the employees of the engineering division removed the engineering drawings and designs and even some parts of the machinery and by accepting their resignations have virtually closed the engineering division causing heavy losses to the plaintiff company. The alleged engineering drawings and designs photocopies of which have allegedly been copied and taken away by the Defendants have not been placed on record apprehending that Defendants would now take the copies of the engineering drawings, etc. if not taken already. It is contended that since plaintiff No. 1 company is the exclusive owner of the engineering drawings/designs, etc. the Defendants have no right to use the same for manufacturing purposes as it would amount to infringement of plaintiff's copyright in the same. 9. Mr. Sandeep Sethi, learned counsel for Defendant No. 1 has vehemently opposed the plaintiffs application. He opposed the plaintiffs prayer on a number of counts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doing the same business as that of the company but is also having business with the company. The partners of the firm are also employed with the company. In view of these facts how can the plaintiffs claim any exclusive ownership rights in he industrial drawings and know-how. The submission is that n exclusivity can be claimed by the plaintiffs in these circumstances. The 'Memorandum of Understanding' of 1974 is in fact the fountain head which created plaintiff No. 1 company. The plaintiffs have misrepresented and have suppressed the relationship which existed between the two groups. The contention is that these facts have been deliberately suppressed and concealed from the Court with a view to injunct the Defendants from doing any business relating to filtration papers and Chemicals etc. The plaintiffs do not have any exclusive right to the alleged industrial drawings, manufacturing process, relating to the development of wide range of filter manufacturing and testing equipment. It has been strongly contended that when the partnership firm M/s. Filtration Services is carrying on the business as that of the plaintiff company, the assertion of the plaintiffs that they are h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant No. 1 and Sh. Sunil Puri Group represented by Sh. Sunil Puri father of plaintiff No. 2, to gain undue advantage and obtain injunction orders against the Defendants. 15. Reference is also made to a Division Bench judgment of this Court reported as Satish Khosla v. M/s. ELI Lilly Ranbaxy Ltd. and Anr. 71(1998)DLT1 . In this case, the plaintiff in a suit in a suit for injunction had failed to disclose that in an earlier suit filed by the plaintiff similar relief was claimed which was not granted. He also failed to place on record the earlier plaint and the copy of the application in the earlier suit. A Division Bench of this High Court after considering the facts observed that by withholding the plaint and application of the earlier suit from the Court and by not disclosing to the Court about the proceedings in the earlier suit and the fact of stay having not been granted, the plaintiff had tried to gain advantage and was Therefore guilty of playing fraud upon the Court as well as on the Respondent. The Division Bench was also of the view that the plaintiff had not come to the Court with clean hands and had suppressed material facts from the Court with a view to gain adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual properties are not identifiable. In the plaint it is generally referred that the industrial drawings, manufacturing process, names of the suppliers of certain parts, used in he machinery constitute the trade secrets of the plaintiff company. Without specifying any particular industrial drawings or machines, the plaintiffs have claimed to be the exclusive owner of their artistic work and design and it is claimed that the concept in the design developed by the plaintiffs is new and original and different from the machines manufactured by other companies. It is further pointed out that the plaint also does not disclose as to in what particular drawings and machines etc., protection is being sought. It is also not pointed out as to under which statute the alleged intellectual property rights of the plaintiff are protected. Learned counsel for the defendant No. 1 further contends that the plaintiffs have filed an additional affidavit giving some additional facts in support of their application under Order XXXIX Rules 1 and 2 CPC and these facts do not form part of the plaint and cannot be considered by placing them on record by way of additional affidavit. The allegations in the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not give the drawings and designs of which copy right is claimed and which have allegedly been taken away/stolen by the defendants. It is submitted that the additional particular given in the additional affidavit cannot be considered as the affidavit cannot be treated as a substitute for the plaint. 19. Reference is also made to Anant Construction Pvt. Ltd. v. Ram Niwas 1994IVAD(Delhi)185 , wherein while discussing the implications of law of pleadings it has been observed that subsequent pleadings are not substitute for amendment in original pleadings. I find force in the submissions of learned counsel for the Defendants. 20. The third plea raised by learned counsel for the defendants is that there cannot by any restraint against a person from carrying on a lawful trade, business or profession. It is contended that the plaintiffs have failed to place anything on record to show that they have any right of exclusivity or protection under any of the statutes for intellectual property rights and in the absence of that they have no right to restrain the defendants from doing business similar to that of the plaintiffs. Such a restraint against he defendants from manufacturing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s letter of appointment. One of the terms was that without the written permission of the management, the employee would not disclose, divulge or publish during he tenure of his employment with the plaintiff, or subsequently, any confidential or secret information including secret process and formulae acquired during the course of the employment with the company and upon termination of the employment or resignation, he would return all papers and documents of the Company which may at the time be in his possession relating to the business affairs of the plaintiff company. It was also part of the terms and conditions of his employment that he would not retained copies or extracts there from. After termination of his services he joined the defendant company. The plaintiff claimed that they had invented a new process of manufacturing of AIP and ZNP by using white/yellow phosphorus instead of red phosphorus. The plaintiff alleged that the Plant Manager on joining the defendant company started the building of a similar plant for them as was built by the plaintiffs, in breach of the terms and conditions of the secrecy agreement. It was alleged that the Plant Manager in breach of the terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of showing any exclusive right protected under any of the Intellectual Property Laws the plaintiffs cannot even claim a restraint against the defendants from carrying on any trade or business similar to that of the plaintiffs. It is submitted that the plaintiffs having failed to show any exclusive proprietary rights in the industrial drawings, designs, etc. are not entitled to any restraint orders against the defendants injecting them from carrying out any trade or business similar to that of the plaintiffs. 24. I find substance in the submissions of the learned counsel. The plaintiffs have prima facie failed to show that they have any exclusive proprietary right in the industrial drawings, designs etc. protected under any of the Intellectual Property Laws. In the absence of the same and in view of the Apex Court's observations in Krishan Murgai's case (Supra), followed by the Gujarat High Court in Sandhya Organic Chemical Ltd case (Supra), prima facie the plaintiffs are not entitled to have any restraint order against the defendants on carrying on any trade or business similar to that of the plaintiffs. Balance of convenience is also in favor of the defendants and ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) or any artistic work as defined in Clause (c) of Section 2 of the Copyright Act, 1957 (14 of 1957). Copyright is defined in Section 2(c) as under:- copyright means the exclusive right to apply a design to any article in any class in which the design is registered. 26. It would also be relevant to refer to Section 11 of the Designs Act which provides as to when a registered proprietor of a design shall have copyright therein. The section runs as under:- Copyright on registration . -(1) When a design is registered, the registered proprietor of the design sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existed independently of a statute. There cannot be any quarrel with this proposition of law. This judgment has no relevance to the facts of the instant case. In the instant case the plaintiffs are claiming copyright alleging to be the exclusive owners of the industrial drawings and design which they are using for manufacturing purposes. The plaintiffs also claim to be the originators of the said drawing and designs. As discussed above, in view of the provisions of the Designs Act, 2000 and the Copyright Act, 1957 the plaintiffs could have claimed copyright therein only if the designs were registered under the Designs Act. 30. plaintiffs do not dispute that the alleged designs or drawings are being used by them for manufacturing purposes. It is also not disputed that the drawings and designs are not registered under the Designs Act. If that is so, I am persuaded to accept the submissions of the learned counsel for the defendants. On the facts and circumstances, I have no hesitation in coming to the conclusion that the plaintiffs have prima facie failed to establish their right. The plaintiffs have failed to make out a prima facie case for grant of injunction prayed for. The bala ..... X X X X Extracts X X X X X X X X Extracts X X X X
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