- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. O.O.C.J. O.O.C.J. NOTICE OF MOTION NO.1220 OF 2004 NOTICE OF MOTION NO.1220 OF 2004 NOTICE OF MOTION NO.1220 OF 2004 AND AND AND NOTICE OF MOTION NO.1425 OF 2004 NOTICE OF MOTION NO.1425 OF 2004 NOTICE OF MOTION NO.1425 OF 2004 IN IN IN SUIT NO.1210 SUIT NO.1210 SUIT NO.1210 OF 2004 ... Mauser Werke GmbH Mauser Werke GmbH Mauser Werke GmbH and another. and another. and another. ...Plaintiffs ...Plaintiffs ...Plaintiffs v/s. v/s. v/s. M/s.BSA Polycontainers and M/s.BSA Polycontainers and M/s.BSA Polycontainers and another ...Defendants another ...Defendants another ...Defendants - 2 - ... ... ... Mr.Janak Dwarkadas with Mr.Rahul Chitnis i/b Mr.Janak Dwarkadas with Mr.Rahul Chitnis i/b Mr.Janak Dwarkadas with Mr.Rahul Chitnis i/b Mrs.Yashoda Bhat for the Plaintiffs. Mrs.Yashoda Bhat for the Plaintiffs. Mrs.Yashoda Bhat for the Plaintiffs. Mr.H.W.Kane with Mr.Rahul Kadam for the Mr.H.W.Kane with Mr.Rahul Kadam for the Mr.H.W.Kane with Mr.Rahul Kadam for the Defendants. Defendants. Defendants. ... ... ... CORAM: D.K.DESHMUKH, J. CORAM: D.K.DESHMUKH, J. CORAM: D.K.DESHMUKH, J. DATED: DATED: DATED: 15TH MARCH,2005 P.C.: P.C.: P.C.: 1. Notice of Motion No.1220 of 2004 has been taken 1. Notice of Motion No.1220 of 2004 has been taken 1. Notice of Motion No.1220 of 2004 has been taken out by the Plaintiffs and Notice of Motion No.1425 of out by the Plaintiffs and Notice of Motion No.1425 of out by the Plaintiffs and Notice of Motion No.1425 of 2004 has been taken out by the Defendants Nos. 1 & 2004 has been taken out by the Defendants Nos. 1 & 2004 has been taken out by the Defendants Nos. 1 & 2. 2. 2. 2. The facts that are material and relevant for 2. The facts that are material and relevant for 2. The facts that are material and relevant for deciding these Notices of Motion are that deciding these Notices of Motion are that deciding these Notices of Motion are that (i) the Plaintiffs have filed the present suit, inter (i) the Plaintiffs have filed the present suit, inter (i) the Plaintiffs have filed the present suit, inter - 3 - alia, praying for a permanent injunction restraining alia, praying for a permanent injunction restraining alia, praying for a permanent injunction restraining the Defendants from infringing the Plaintiff No.1’s the Defendants from infringing the Plaintiff No.1’s the Defendants from infringing the Plaintiff No.1’s patents (Indian Patent Nos. 179257 and 179292) in patents (Indian Patent Nos. 179257 and 179292) in patents (Indian Patent Nos. 179257 and 179292) in any manner and applying its Registered Designs any manner and applying its Registered Designs any manner and applying its Registered Designs (Registration No.162573 and 164729) and/or fraudulent (Registration No.162573 and 164729) and/or fraudulent (Registration No.162573 and 164729) and/or fraudulent or obvious imitation thereof and for damages and/or or obvious imitation thereof and for damages and/or or obvious imitation thereof and for damages and/or for accounts of profits and delivery for destruction for accounts of profits and delivery for destruction for accounts of profits and delivery for destruction of infringed/pirated goods etc. of infringed/pirated goods etc. of infringed/pirated goods etc. (ii). The case of the Plaintiffs is that Patent (ii). The case of the Plaintiffs is that Patent (ii). The case of the Plaintiffs is that Patent No.179257 relates to the stacking performance of the No.179257 relates to the stacking performance of the No.179257 relates to the stacking performance of the barrels/drums to improve the stacking properties. barrels/drums to improve the stacking properties. barrels/drums to improve the stacking properties. The novelty of the invention lies to allow the upper The novelty of the invention lies to allow the upper The novelty of the invention lies to allow the upper barrel head and lower barrel head to deform barrel head and lower barrel head to deform barrel head and lower barrel head to deform elastically and build up internal hydrostatic elastically and build up internal hydrostatic elastically and build up internal hydrostatic pressure to resist the top load before transmitting pressure to resist the top load before transmitting pressure to resist the top load before transmitting the part of the load to the outer cylindrical wall the part of the load to the outer cylindrical wall the part of the load to the outer cylindrical wall and through the handling rings, saving them from any and through the handling rings, saving them from any and through the handling rings, saving them from any appreciable deformation/buckling. Amongst other appreciable deformation/buckling. Amongst other appreciable deformation/buckling. Amongst other things, this is achieved by connecting the end things, this is achieved by connecting the end things, this is achieved by connecting the end surfaces of the drum which bears the load to the drum surfaces of the drum which bears the load to the drum surfaces of the drum which bears the load to the drum body wall through resiliently deformable annular body wall through resiliently deformable annular body wall through resiliently deformable annular portions which are conical in cross section. portions which are conical in cross section. portions which are conical in cross section. (iii) Plaintiffs state that the Patent No.179292 (iii) Plaintiffs state that the Patent No.179292 (iii) Plaintiffs state that the Patent No.179292 - 4 - relates to the optimal drainability of the drum. relates to the optimal drainability of the drum. relates to the optimal drainability of the drum. When the filled-in (liquid) goods in emptied out of When the filled-in (liquid) goods in emptied out of When the filled-in (liquid) goods in emptied out of the drum by keeping the drum in inverted/tilted the drum by keeping the drum in inverted/tilted the drum by keeping the drum in inverted/tilted position, the novelty feature of this patent allows position, the novelty feature of this patent allows position, the novelty feature of this patent allows the optimal/complete emptying of the residue from the the optimal/complete emptying of the residue from the the optimal/complete emptying of the residue from the drum without the need to rock the drum to and fro. drum without the need to rock the drum to and fro. drum without the need to rock the drum to and fro. This invention is achieved by scientifically This invention is achieved by scientifically This invention is achieved by scientifically providing an inclination/slant on the top portion of providing an inclination/slant on the top portion of providing an inclination/slant on the top portion of the drum without compromising drop or stack the drum without compromising drop or stack the drum without compromising drop or stack performance. performance. performance. (iv) The barrels/drums which are being manufactured (iv) The barrels/drums which are being manufactured (iv) The barrels/drums which are being manufactured by the Plaintiffs are by applying the Plaintiff by the Plaintiffs are by applying the Plaintiff by the Plaintiffs are by applying the Plaintiff No.1’s parent (Indian Patent Nos. 179257 and 179292) No.1’s parent (Indian Patent Nos. 179257 and 179292) No.1’s parent (Indian Patent Nos. 179257 and 179292) and applying its Registered Designs (registration and applying its Registered Designs (registration and applying its Registered Designs (registration No.162573 and 164729) are hereinafter referred to as No.162573 and 164729) are hereinafter referred to as No.162573 and 164729) are hereinafter referred to as ‘A type’ barrels/drums. ‘A type’ barrels/drums. ‘A type’ barrels/drums. (v) The Defendants Nos. 1 and 2 are manufacturers of (v) The Defendants Nos. 1 and 2 are manufacturers of (v) The Defendants Nos. 1 and 2 are manufacturers of plastic drums, who are manufacturing and selling the plastic drums, who are manufacturing and selling the plastic drums, who are manufacturing and selling the infringing drums. Defendants Nos. 3 and 4 are the infringing drums. Defendants Nos. 3 and 4 are the infringing drums. Defendants Nos. 3 and 4 are the mould makers, who have made the moulds used in the mould makers, who have made the moulds used in the mould makers, who have made the moulds used in the manufacture of the infringing drums. The moulds manufacture of the infringing drums. The moulds manufacture of the infringing drums. The moulds manufactured by Defendant Nos. 3 & 4 can be used manufactured by Defendant Nos. 3 & 4 can be used manufactured by Defendant Nos. 3 & 4 can be used only for the purpose of making the infringing drums only for the purpose of making the infringing drums only for the purpose of making the infringing drums - 5 - and for no other purpose whatsoever. The Plaintiffs and for no other purpose whatsoever. The Plaintiffs and for no other purpose whatsoever. The Plaintiffs state that by making the moulds the Defendants Nos. state that by making the moulds the Defendants Nos. state that by making the moulds the Defendants Nos. 3 & 4 have aided and abetted Defendant Nos. 1 & 2 in 3 & 4 have aided and abetted Defendant Nos. 1 & 2 in 3 & 4 have aided and abetted Defendant Nos. 1 & 2 in infringing the patents of Plaintiff No.1. infringing the patents of Plaintiff No.1. infringing the patents of Plaintiff No.1. (vi) By order dated 22nd April, 2004 this Court (vi) By order dated 22nd April, 2004 this Court (vi) By order dated 22nd April, 2004 this Court granted ad-interim order in terms of prayer clauses granted ad-interim order in terms of prayer clauses granted ad-interim order in terms of prayer clauses (a), (b), (c) and (d) of Notice of Motion No.1220 of (a), (b), (c) and (d) of Notice of Motion No.1220 of (a), (b), (c) and (d) of Notice of Motion No.1220 of 2004. The Receiver was appointed of all 2004. The Receiver was appointed of all 2004. The Receiver was appointed of all products/articles manufactured by the Defendants by products/articles manufactured by the Defendants by products/articles manufactured by the Defendants by infringing the Patent Nos. 179257 and 179292 and the infringing the Patent Nos. 179257 and 179292 and the infringing the Patent Nos. 179257 and 179292 and the Design Nos. 162573 and all products/articles by Design Nos. 162573 and all products/articles by Design Nos. 162573 and all products/articles by using the same patents and by applying the said using the same patents and by applying the said using the same patents and by applying the said designs and/or molds and any other material designs and/or molds and any other material designs and/or molds and any other material implement, the predominant use of which is the implement, the predominant use of which is the implement, the predominant use of which is the creation of infringing the said patent and to take creation of infringing the said patent and to take creation of infringing the said patent and to take physical possession of all the drums/barrels physical possession of all the drums/barrels physical possession of all the drums/barrels manufactured by the Defendants Nos. 1 & 2 by manufactured by the Defendants Nos. 1 & 2 by manufactured by the Defendants Nos. 1 & 2 by infringing the patents Nos. 179257 and 179292 and infringing the patents Nos. 179257 and 179292 and infringing the patents Nos. 179257 and 179292 and the designs Nos.162573 and all drums/barrels by using the designs Nos.162573 and all drums/barrels by using the designs Nos.162573 and all drums/barrels by using the said patents and by applying the said designs and the said patents and by applying the said designs and the said patents and by applying the said designs and all moulds and any other material and implement, the all moulds and any other material and implement, the all moulds and any other material and implement, the predominant use of which is in the creation of predominant use of which is in the creation of predominant use of which is in the creation of infringing the said patents and the said designs infringing the said patents and the said designs infringing the said patents and the said designs which are in possession of the Defendants Nos. 1 and which are in possession of the Defendants Nos. 1 and which are in possession of the Defendants Nos. 1 and - 6 - 2. 2. 2. (vii) On or about 27th April, 2004, the (vii) On or about 27th April, 2004, the (vii) On or about 27th April, 2004, the representative of the Court Receiver, High Court, representative of the Court Receiver, High Court, representative of the Court Receiver, High Court, Bombay attended the factory of Defendants Nos. 1 and Bombay attended the factory of Defendants Nos. 1 and Bombay attended the factory of Defendants Nos. 1 and 2 situated at Plot Nos. 86 and 87B, Nanji Industrial 2 situated at Plot Nos. 86 and 87B, Nanji Industrial 2 situated at Plot Nos. 86 and 87B, Nanji Industrial Estate, Village Kharadpada, Silvassa for taking Estate, Village Kharadpada, Silvassa for taking Estate, Village Kharadpada, Silvassa for taking physical possession of all the drums/barrels physical possession of all the drums/barrels physical possession of all the drums/barrels manufactured by the Defendants Nos. 1 and 2 by manufactured by the Defendants Nos. 1 and 2 by manufactured by the Defendants Nos. 1 and 2 by infringing the patents Nos. 179257 and 179292 and infringing the patents Nos. 179257 and 179292 and infringing the patents Nos. 179257 and 179292 and the designs Nos. 162573 and all drums/barrels by the designs Nos. 162573 and all drums/barrels by the designs Nos. 162573 and all drums/barrels by using the said patents and by applying the said using the said patents and by applying the said using the said patents and by applying the said designs and all moulds and any other material and designs and all moulds and any other material and designs and all moulds and any other material and implement, the predominant use of which is in the implement, the predominant use of which is in the implement, the predominant use of which is in the creation of infringing the said patents and the said creation of infringing the said patents and the said creation of infringing the said patents and the said designs which are in possession of the Defendants designs which are in possession of the Defendants designs which are in possession of the Defendants Nos. 1 and 2. The Court Receiver took possession of Nos. 1 and 2. The Court Receiver took possession of Nos. 1 and 2. The Court Receiver took possession of the following goods from the Defendants Nos. 1 and the following goods from the Defendants Nos. 1 and the following goods from the Defendants Nos. 1 and 2; (a) Blow-Pin (210 litres) (4 pieces), (b) After 2; (a) Blow-Pin (210 litres) (4 pieces), (b) After 2; (a) Blow-Pin (210 litres) (4 pieces), (b) After Coolers (4 pieces), (c) Light Testing Equipment (One Coolers (4 pieces), (c) Light Testing Equipment (One Coolers (4 pieces), (c) Light Testing Equipment (One piece), (d) die Core (210 litres) (One Piece), (e) piece), (d) die Core (210 litres) (One Piece), (e) piece), (d) die Core (210 litres) (One Piece), (e) Slides (210 litres) (One set), (f) Body Pressure (210 Slides (210 litres) (One set), (f) Body Pressure (210 Slides (210 litres) (One set), (f) Body Pressure (210 litres) and (g) Drums (113 Pieces) (20 used and 93 litres) and (g) Drums (113 Pieces) (20 used and 93 litres) and (g) Drums (113 Pieces) (20 used and 93 unused). However, the representative of the Court unused). However, the representative of the Court unused). However, the representative of the Court Receiver could not take possession of the moulds used Receiver could not take possession of the moulds used Receiver could not take possession of the moulds used - 7 - in the manufacture of barrels/drums of 210 litres, as in the manufacture of barrels/drums of 210 litres, as in the manufacture of barrels/drums of 210 litres, as the said moulds were allegedly sent for repairs. the said moulds were allegedly sent for repairs. the said moulds were allegedly sent for repairs. (viii) On or about 27th April, 2004, the (viii) On or about 27th April, 2004, the (viii) On or about 27th April, 2004, the representative of the Court Receiver, High Court representative of the Court Receiver, High Court representative of the Court Receiver, High Court attended the factory of Defendants Nos. 3 and 4 attended the factory of Defendants Nos. 3 and 4 attended the factory of Defendants Nos. 3 and 4 situated at Gala Nos. 7 and 14 of Ashok Industrial situated at Gala Nos. 7 and 14 of Ashok Industrial situated at Gala Nos. 7 and 14 of Ashok Industrial Estate, LBS Marg, Mulund, Mumbai 400 080, for taking Estate, LBS Marg, Mulund, Mumbai 400 080, for taking Estate, LBS Marg, Mulund, Mumbai 400 080, for taking physical possession of all the drums/barrels physical possession of all the drums/barrels physical possession of all the drums/barrels manufactured by the Defendants Nos. 3 and 4 by manufactured by the Defendants Nos. 3 and 4 by manufactured by the Defendants Nos. 3 and 4 by infringing the patents Nos. 179257 and 179292 and infringing the patents Nos. 179257 and 179292 and infringing the patents Nos. 179257 and 179292 and the designs Nos. 162573 and all drums/barrels by the designs Nos. 162573 and all drums/barrels by the designs Nos. 162573 and all drums/barrels by using the said patents and by applying the said using the said patents and by applying the said using the said patents and by applying the said designs and all moulds and any other material and designs and all moulds and any other material and designs and all moulds and any other material and implement, the predominant use of which is in the implement, the predominant use of which is in the implement, the predominant use of which is in the creation of infringing the said patents and the said creation of infringing the said patents and the said creation of infringing the said patents and the said designs which are in possession of the Defendants designs which are in possession of the Defendants designs which are in possession of the Defendants Nos. 3 and 4. The representative of the Court Nos. 3 and 4. The representative of the Court Nos. 3 and 4. The representative of the Court Receiver took possession of various infringing moulds Receiver took possession of various infringing moulds Receiver took possession of various infringing moulds and mould body parts from Gala Nos. 7 and 14. and mould body parts from Gala Nos. 7 and 14. and mould body parts from Gala Nos. 7 and 14. (ix) On or about 10th May, 2004, the Defendants Nos. (ix) On or about 10th May, 2004, the Defendants Nos. (ix) On or about 10th May, 2004, the Defendants Nos. 1 and 2 took out Notice of Motion No.1425 of 2004, 1 and 2 took out Notice of Motion No.1425 of 2004, 1 and 2 took out Notice of Motion No.1425 of 2004, praying that the order dated 22nd April, 2004 be praying that the order dated 22nd April, 2004 be praying that the order dated 22nd April, 2004 be - 8 - vacated. vacated. vacated. (x) Vide order dated 21st May, 2004, the court (x) Vide order dated 21st May, 2004, the court (x) Vide order dated 21st May, 2004, the court modified the order dated 22nd April, 2004. The Court modified the order dated 22nd April, 2004. The Court modified the order dated 22nd April, 2004. The Court continued the ad-interim order granted in terms of continued the ad-interim order granted in terms of continued the ad-interim order granted in terms of prayer clauses (a) and (b) of Notice of Motion prayer clauses (a) and (b) of Notice of Motion prayer clauses (a) and (b) of Notice of Motion No.1220 of 2004, however, cancelled the order No.1220 of 2004, however, cancelled the order No.1220 of 2004, however, cancelled the order appointing the court receiver as against the appointing the court receiver as against the appointing the court receiver as against the Defendants Nos. 1 & 2. Defendants Nos. 1 & 2. Defendants Nos. 1 & 2. (xi) The Plaintiffs filed an appeal against the order (xi) The Plaintiffs filed an appeal against the order (xi) The Plaintiffs filed an appeal against the order dated 21st May, 2004 passed by the learned Single dated 21st May, 2004 passed by the learned Single dated 21st May, 2004 passed by the learned Single Judge. Pursuant to the order passed by the Appeal Judge. Pursuant to the order passed by the Appeal Judge. Pursuant to the order passed by the Appeal Court, the Defendants Nos. 1 & 2 filed an Court, the Defendants Nos. 1 & 2 filed an Court, the Defendants Nos. 1 & 2 filed an undertaking to the following effect. undertaking to the following effect. undertaking to the following effect. (2) I undertake on behalf of Respondents (2) I undertake on behalf of Respondents (2) I undertake on behalf of Respondents Nos. 1 and 2 to abide by prayer clause (a) Nos. 1 and 2 to abide by prayer clause (a) Nos. 1 and 2 to abide by prayer clause (a) of Notice of Motion No.1220 of 2004 till of Notice of Motion No.1220 of 2004 till of Notice of Motion No.1220 of 2004 till further orders of this Hon’ble Court. further orders of this Hon’ble Court. further orders of this Hon’ble Court. (3) I undertake that the articles in item (3) I undertake that the articles in item (3) I undertake that the articles in item Nos. 1 to 7 at page 3 of the Court Nos. 1 to 7 at page 3 of the Court Nos. 1 to 7 at page 3 of the Court Receiver’s Report dated 6th May, 2004 Receiver’s Report dated 6th May, 2004 Receiver’s Report dated 6th May, 2004 namely (a) Blow-Pin (210 litres) (4 namely (a) Blow-Pin (210 litres) (4 namely (a) Blow-Pin (210 litres) (4 - 9 - pieces), (b) After Coolers (4 pieces), (c) pieces), (b) After Coolers (4 pieces), (c) pieces), (b) After Coolers (4 pieces), (c) Light Testing Equipment (One piece), (d) Light Testing Equipment (One piece), (d) Light Testing Equipment (One piece), (d) Die Core (210 litres) (One Piece), (e) Die Core (210 litres) (One Piece), (e) Die Core (210 litres) (One Piece), (e) Slides (210 litres) (One Set), (f) Body Slides (210 litres) (One Set), (f) Body Slides (210 litres) (One Set), (f) Body Pressure (210 litres) and (g) Drums (113 Pressure (210 litres) and (g) Drums (113 Pressure (210 litres) and (g) Drums (113 Pieces) (20 used and 93 unused) will be Pieces) (20 used and 93 unused) will be Pieces) (20 used and 93 unused) will be retained by me at my factory premises at retained by me at my factory premises at retained by me at my factory premises at plot No.86 and 87 B, nanji Industrial plot No.86 and 87 B, nanji Industrial plot No.86 and 87 B, nanji Industrial Estate, Village Kharadapada, Silvassa Estate, Village Kharadapada, Silvassa Estate, Village Kharadapada, Silvassa 396235 pending further orders from this 396235 pending further orders from this 396235 pending further orders from this Hon’ble Court. Hon’ble Court. Hon’ble Court. (4) I say that after the mould is repaired (4) I say that after the mould is repaired (4) I say that after the mould is repaired and returned to me, I will retain the same and returned to me, I will retain the same and returned to me, I will retain the same at the above premises pending further at the above premises pending further at the above premises pending further orders from this Hon’ble Court. orders from this Hon’ble Court. orders from this Hon’ble Court. (xii) The Defendants Nos. 1 and 2 have filed an (xii) The Defendants Nos. 1 and 2 have filed an (xii) The Defendants Nos. 1 and 2 have filed