Delhi High Court - Orders
Kubota Corporation vs Godabari Agro Machinery And Services ... on 1 November, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~47
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 655/2023 & 21585/2023
KUBOTA CORPORATION ..... Plaintiff
Through: Mr. J. Sai Deepak, Mr. Nitin
Wadhwa, Ms. Srishti Banerjee, Mr.
Cheitanya Madan, Mr. R.
Vigneshwar, Ms. Arpita Bishnoi &
Mr. Avinash Sharma, Advs. (M.
8588939380)
versus
GODABARI AGRO MACHINERY AND
SERVICES INDIA PRIVATE LIMITED & ORS...... Defendants
Through: Mr. Goutam Kumar Acharya Senior
Advocate with Mr. Ashish
Aggarwal, Ms. Gurkamal Hora
Arora, Ms. Ramya Aggarwal & Mr.
Jaisal Baaath, Adv. (M.9560744337)
Mr. Nirupam Lodha & Mr. Gautam
Wadhwa, Adv. for D-3. (M: 98714
44784)
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 01.11.2023
1. This hearing has been done through hybrid mode.
I.A. 21585/2023 in CS(COMM)-655/2023
2. The application has been moved by the Plaintiff to the effect that the order dated 21st September, 2023 has not been given full effect - inasmuch as when the technical experts appointed by this Court visited the premises in Orissa, the harvester could be inspected but the dust fan was not attached to CS(COMM) 655/2023 Page 1 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/11/2023 at 23:39:44 the harvester and no inspection of the same has been conducted by the experts.
3. The prayer, therefore, in this application is for disclosure of the importers of the combine harvester along with the dust fans and for disclosure of the details of the sales figures and manufacturing details of the same.
4. The case of the Plaintiff is that the dust fan is sold as an accessory along with the impugned product and ld. Counsel for the Plaintiff has taken the Court through the claim mapping in respect of Suit Patent No. 354002 in which as part of claim 1, the dust fan is used as a dust removal device. From the documents placed on record, it appears that the dust fan is openly available in the market. The images of the same have also been placed on record. It is not clear as to who is the manufacturer of these products.
5. None of the Defendants who are represented today before the Court are clearly disclosing the details of how the dust fan is being sold in India. A perusal of the application and the invoice filed by the Plaintiff would show that the dust fan is available in India with the markings of Defendant No.3- World Group who is a Chinese manufacturer. The images of the same are set out below:
CS(COMM) 655/2023 Page 2 of 6This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/11/2023 at 23:39:44 Carton with the marking of Chinese manufacturer:
6. Ld. Sr. counsel has also handed across a copy of the purchase order revealing the exporter from China from whom Defendant No.1 is importing the combine harvester. The said invoice is taken on record and the same be scanned as a separate miscellaneous document along with the Court record. The said invoice is as under:
CS(COMM) 655/2023 Page 3 of 6This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/11/2023 at 23:39:45 CS(COMM) 655/2023 Page 4 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/11/2023 at 23:39:46
7. On behalf of Defendant No.3, it is submitted that the dust fan with the image above is not a product of the Defendant No.3.
8. On behalf of Defendant No.1, it is asserted by Mr. Acharya, ld. Sr. counsel that the combine harvester is imported from China and the brand of Defendant No.1 is inscribed on the same.
9. It is unclear as to who is manufacturing, exporting, importing and selling these dust fans with the combine harvesters which are being imported and sold by the Defendants. The facts are not tallying in terms of the facts pleaded in the application. If none of the Defendants claim any rights to import the dust fans, upon hearing the Plaintiff if it is found that the dust fans are infringing, the same would be liable to be injuncted.
10. However, by the end of the hearing, all the Defendants have agreed to together ensure that the dust fan attached to the Defendants' harvester would be made available for inspection by the experts.
11. Vide order dated 21st September, 2023, two experts were appointed i.e.,Ms. Prof. Padmavati Manchikanti (M: +91- 9434743672) from IIT Kharagpur and Dr. Anmol P. Bhondekar (M: +91 8146585825) from CSIR- Central Scientific Instruments Organisation (CSIO) for inspection. The fee of the experts, plus out of pocket expenses shall now be borne by the Defendants which is fixed at Rs. 1.5 Lakhs each.
12. The experts shall be provided the inspection of the said dust fans along with the harvester at the same premises i.e., 'Plot No.130, situated at Rudrapur, Balianta, Dist.- Khordha, Bhubaneshwar, Orissa-752101', where the combine harvester was also inspected by the experts. The inspection shall be conducted by the two experts within 4 weeks. The two experts shall be permitted to take photographs as also videography. One CS(COMM) 655/2023 Page 5 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/11/2023 at 23:39:46 Advocate and one technical person, on behalf of each of the parties is permitted to accompany the two Experts. The two Experts shall inform the respective Counsels of the parties in advance as to the date of inspection. A comprehensive report after execution of both inspections shall be placed on record within 4 weeks after the inspection.
13. It is made clear that if all the Defendants are disowning the export, import or sale of the dust fans, this Court would be inclined to restrain the import of the said dust fan on the next date of hearing.
14. The amended memo of parties and the claim charts be brought on record. Delay, if any, is condoned.
15. Notice is accepted by ld. Counsel for the Defendants in this application. Let a reply be filed within four weeks. Rejoinder, thereto, within two weeks.
16. List on 14th December, 2023.
PRATHIBA M. SINGH, J.
NOVEMBER 01, 2023 dj/ks CS(COMM) 655/2023 Page 6 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/11/2023 at 23:39:46