India: Effect of Malafides on Interim Relief in Infringement Cases

Last Updated: 16 November 2005
Article by Manisha Singh Nair

Good faith is absolutely necessary for obtaining interim relief from the Court. Where the plaintiff suppresses any material fact from the Court for the purpose of obtaining the interlocutory relief, the order shall become susceptible to being dissolved on the ground of lack of bonafides and for misleading the Court.

The recent case Bucyrus Europe Limited & Anr. V. Vulcan Industries Engineering Company Pvt. Ltd 2005 (30) PTC 279 (Cal) (DB) exemplifies this principle

Factual Background

This case arose as an appeal by Bucyrus Europe Limited, against the order passed by the trial Court wherein the trial Court refused to grant exparte injunction order and directed a notice to the defendant Vulcan Industries. Along with the appeal Bucyrus also filed a petition for the grant of exparte ad interim order of injunction. The High Court granted the exparte ad interim order restraining Vulcan from manufacturing, selling, stocking for sale, offering for sale, marketing, advertising and distributing in any other manner, dealing with the impugned product of Vulcan, having been produced from any drawing or any design substantially similar thereto by using the engineering, design, shape and the configuration and get up of the product of the Bucyrus. The court also appointed a special officer for the purpose of searching the premises of Vulcan and seizing any infringing material therefrom.

Vulcan opposed the continuation of the ad interim injunction on the ground that the Bucyrus has suppressed a material and vital fact for the purpose of obtaining the injunction. According to Vulcan it has filed three applications for the cancellation of the registration of the Design Registered in the name of Bucyrus and the latter has sought time from the Controller of Patent and Design in Calcutta for the purpose of filing counter statement. This fact was not revealed by Bucyrus to the Court in the petition for exparte ad interim injunction.

The Design Law provides that in any suit for piracy/infringement of a registered design, all the grounds for the cancellation of the design enumerated in the Design Act can be taken up a defence to such an action. Therefore, Vulcan contended that the Bucyrus should have disclosed in their petition, the grounds on which Vulcan seeks cancellation of the design. The Court should have then considered both the interim injunction as well as the grounds for cancellation taken by Vulcan.

Bucyrus argued that the designs for walking draglines, which are used in mines, have been developed by using 60 drawing out of which only 3 are registered and 57 are copyrighted (not registered). This proceeding is initiated for the violation of the copyright in those drawings by Vulcan Industries and is independent of the proceedings for infringement of the design filed by it in the trial Court. Bucyrus also contended that Vulcan did not co-operate with the Special Officer in carrying out the inspection of the premises and therefore the Anton Pillar order passed by the Court has not been carried out.


The Court on the perusal of the report of the Special Officer arrived at the conclusion that Vulcan had fully co-operated with the Special Officer in the inspection of its premises. The Court was of the opinion that the Anton Pillar order must be passed only in cases where the plaintiff presents a strong case in his favour that such an order is necessary to meet the ends of justice.

The Court was of the opinion that Bucyrus had suppressed a material fact while obtaining the ad interim injunction. Though Bucyrus tried to divide the case for infringement of design from the case for infringement of copyright, the petition reveals that Bucyrus were running a case for both. The fact of the pending cancellation proceedings before the Controller of Patents and Designs was suppressed from the Court.

Bringing forth the principles that govern the grant of Anton Pillar order, the Court observed that ‘ the utmost good faith of the plaintiff is the condition precedent for the grant of an injunction on the lines of Anton Pillar order’.

Bucyrus claimed in the pleading to be marketing the equipments embodying the design for past ten years. According to the law, a copyright in the design in lost by virtue of the application of the design to more than fifty articles by industrial process. Therefore it is still a disputed fact as to whether the copyright in the drawings, still subsists. A disputed fact therefore cannot be a ground for an ad interim injunction order.

Also, since pleadings of Bucyrus contain misleading averments, they are lacking in bonafides or good faith. Therefore the ad interim injunction order passed by the Court should be dissolved. The Court dismissed the Appeal filed against the order of the trial Court refusing the grant of interim injunction.


Anton Pillar order is passed only when the harm caused to the plaintiff is grave in nature and a genuine case in favour of the plaintiff is made out. Suppression of fact is a fraud on the Court and also an abuse of the process of the Court.

© Lex Orbis 2005

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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