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16. While dealing with the respective applications of the Appellant as well as the Respondent for interim injunction, the learned Judge by an interim order dated 16.02.2008, while granting interim injunction as prayed for by the Respondent in O.A.No.1357 of 2007 in C.S.No.1111 of 2007, dismissed the Appellant's application No.1272 of 2007 in C.S.No.979 of 2007.

17. Aggrieved against the said common order of the learned Judge, the Appellant has come forward with these appeals.

18. Mr.A.L.Somayaji and Mr.P.S.Raman, learned senior counsel appeared on behalf of the Appellant and advanced arguments. Mr.C.A.Sundaram, learned senior counsel appeared on behalf of the Respondent made his submissions.

(b) The learned senior counsel then relied upon 1948 (52) CWN 253 (Boots Pure Drug Co. Vs. May and Baker Ltd.) wherein the Division Bench of the Calcutta High Court has held that in order to get an interim injunction, the prima facie validity of the patent should be shown that the prima facie infringement must also be proved apart from availability of balance of convenience. It was also stated therein that as a rule of practice if a patent is a new one, a mere challenge at the Bar would be quite sufficient for the refusal of an interim injunction as compared to a patent which is fairly old and has been up into use, in which case, it would be safe for the Court to proceed upon the presumption of its validity. The said principle was applied by the Delhi High Court in the decision reported in AIR 1980 Delhi 132 (National Research Development Corporation of India, New Delhi Vs. The Delhi Cloth and General Mills Co. Ltd and ors.)

(f) Reliance was also placed upon 2005-BCR-3-191 (Novartis AG Vs. Mehar Pharma) of the Bombay High Court wherein the settled principle of any matters to grant of interim injunction in relation to a patent, the party applied for it should satisfy that there is probability of the plaintiff succeeding on the trial of the suit and when the patent is of a recent date, no interim injunction should be granted especially when there is serious question as to the validity of the patent was raised by the defendant to be tried in the suit.

79. Further applying the well laid down principle that when application for revocation of a patent of the Respondent is pending before the Appellate Tribunal and when such an application has been preferred on the ground of existence of a prior art, obviousness and other formidable grounds as provided under Section 64 of the Patent's Act, the Court should not grant injunction in such cases. We hold that in the special facts and circumstances of the case, grant of interim injunction cannot be sustained. According to the Appellant the failure of the Respondent in its initial specification dated 16.07.2002 and the amended specification of the year 2003, in not specifically referring to the Honda Patent No.4534322 dated 13.08.1985, and making a reference to the said patent after the International Search Report dated 13.08.2004 and that too by making a statement that the said existing Honda Patent related to large bore size and not with reference to a small bore are all grounds which require detailed consideration on merits. The allegation of the Appellant that the Respondent secured the patent by making a deceptive statement about the bore size of the Honda Patent, requires a detailed investigation. Further it will have to be stated that such an allegation of the Appellant cannot be rejected as baseless or made without any substance. In such circumstances as held in various decisions referred to above, the grant of interim injunction would be wholly not justified.