Judgment :- Sethuraman, J. 1. The plaintiff is Neiveli Ceramics & Refractories Limited, carrying on business in the manufacture of sanitaryware and other ceramic products. It obtained a patent under No. 103411 on 13th January 1966 under the Indian Patents and Designs Act, 1911. The patent was in respect of sanitaryware comprising wash basins, sinks on like products. The patent consisted of three features in such sanitaryware. They are : (1) Anti splash rim (2) Semipunched holes and (3) Concealed brackets. 2. Re feature No. 1 above : the rim of the basin was so extended as to form a projecting ridge against water splashing when the tap is opened and water pours out into the basin. This projecting rim is designed to protect the splash of water. 3. Re feature No. 2 above : in each basin there are provisions for taps sometimes one, sometimes two and even sometimes more than two. In order to provide for holes for such taps there is a supervening sheet of porcelain or other matter integrally formed with its adjacent surroundings of the wash basin etc., and covering the mouths of the extra holes provided for the purpose of anticipating a future need to install more faucets than are normally needed. The said sheets of porcelain thus formed would remain in contact, but would break and fall away exposing the mouth of the hole whenever a slight tap was given by a soft headed hammer. This was called provision of semipunched holes. 4. Re third feature : this consists of provision of two recesses at the rear of the basin etc. capable of engaging with two L hooks, so that it could be embedded in a wall or other like support. 5. It is these features which were patented under the patent mentioned above issued by the Controller or Patents and Designs, Calcutta. The plaintiff has filed with the plaint a copy of the drawing and also a wash basin which, according to it, contains, one of the embodiments of its patented inventions, which has been marked as Material Object No. 1. The plaintiff, therefore, claims an exclusive privilege of making, selling and using the invention throughout India and authorising others to do so under Section 12 of the Indian Patents and Designs Act, 1911. The plaintiff, therefore, claims an exclusive privilege of making, selling and using the invention throughout India and authorising others to do so under Section 12 of the Indian Patents and Designs Act, 1911. The plaintiff claims also a right under Section 29 of the Act to institute a suit for infringement of its patent in respect of any act which constitutes the making, selling or using of the invention without the plaintiff's licence or in respect of any act of counterfeiting or imitating the said invention. 6. The defendant, a company incorporated in India, was carrying on business under the name and style of Hindustan Twyfords Limited. Its name was later on changed to the present one. It also is engaged in the manufacture of sanitaryware and other ceramic materials. The plaintiff claims that it came to its notice that the defendant was manufacturing and selling in the City of Madras wash basins which are an infringement of the plaintiff's patented invention. The defendant's manufacture is said to be identical with or at least a close imitation of the plaintiff's aforesaid patent. One of the wash basins manufactured by the defendant has been produced as Material Object No. II, which, according to the plaintiff, discloses the infringement of the patent. 7. On 8.5.1969 the plaintiff wrote to the defendant calling upon it to desist from infringing the aforesaid patent. There are further correspondents. The defendant disputed the validity of the plaintiff's patent on the ground of "prior knowledge" and "prior publication" and offered to give inspection of its relevant documents at the Office of its Attorneys. The plaintiff through its Attorneys repudiated the defendant's contentions and requested the defendant to forward the documents so as to enable it to inspect them. The last of the letters written by the plaintiff was the one dated 9.7.1969 through its Trade Mark and Patent Attorneys, Kamath & Kamath. 8. The plaintiff through its Attorneys repudiated the defendant's contentions and requested the defendant to forward the documents so as to enable it to inspect them. The last of the letters written by the plaintiff was the one dated 9.7.1969 through its Trade Mark and Patent Attorneys, Kamath & Kamath. 8. The defendant thereafter filed a petition sometime late in 1969, in the High Court of Delhi for revocation of the patent bearing No. 103411 on the ground that the invention or inventions were not, at the date of the patent any manner of new manufacture or improvement, that the invention or inventions did not involve any inventive step, having regard to what was known or used prior to the date of the patent, that the complete specification relating to the patent did not sufficiently and clearly ascertain the scope of the invention or inventions claimed and that the patent was obtained on a false suggestion or representation. In the petition marked as Ex. P. 8 herein the defendant claimed that it was manufacturing wash basins under its various patterns particularly patent Nos. 10003, 10005, 10006 and 10007 which were in production since September 1962. The defendant also stated in its petition that it had in its possession various catalogues and literature showing the like patents much prior to the date of the grant of the patent. These referred to the anti splash ridge. It was also stated that the practice of concealed tap holes on wash basin had been followed by various manufacturer, including the defendant much prior to the date of the grant of Patent under consideration. Regarding the concealed brackets, it was claimed that such feature was in use on wash basins, of the defendant's manufacture under various patterns including pattern 10001 which was in production since September, 1962. The said feature also appeared, according to the defendant, on various publications and catalogues of foreign origin in the possession of the defendant much prior to the date of the grant. It is on these allegations that the defendant applied for the revocation of the patent in C.O.No. 7 of 1969 on the file of the High Court of Delhi. 9. In the present plaint that plaintiff stated that it was contesting the proceedings in the Delhi High Court. It is on these allegations that the defendant applied for the revocation of the patent in C.O.No. 7 of 1969 on the file of the High Court of Delhi. 9. In the present plaint that plaintiff stated that it was contesting the proceedings in the Delhi High Court. According to it the petition for revocation was liable to be dismissed on the ground that the Delhi High Court had no jurisdiction to entertain the petition. The plaintiff claims in the plaint that the infringement committed by the defendant was causing considerable loss to it and that if the defendant was allowed to continue its activities of the infringement, the plaintiff's business in the patented wash basins built up by it by dint of intensive research, toil and labour would be seriously affected to its detriment. The plaintiff, therefore, claims that the defendant must be restrained by an interim injunction from manufacturing, projecting and selling them. The plaintiff claims also that the defendant should account for its sales and profits and that the defendant should surrender the infringing articles. The suit was instituted on 20.1.1970, while the revocation proceedings had been filed by the defendant in the Delhi High Court in 1969. 10. The defendant has filed a written statement contending that inasmuch as the validity of the alleged patent was challenged and was actually the subject matter of a previously instituted suit under Section 26 of the Patents and Designs Act of 1911, the suit in this Court was premature and was an abuse of the process of law. There is also a submission in the written statement that the present suit was liable to be transferred to the Delhi High Court for disposal. According to the defendant there was no new invention or improvement and the alleged invention did not involve any inventive step, having regard to what was known and used prior to the date of the patent. It is stated that the complete specification relating to the patent did not sufficiently and clearly describe the scope of the invention, that the patent was obtained on a false suggestion or representation and that the three features alleged to be inventions, had been commonly and widely used and in vogue for several years prior to the patent both in and outside India. The defendant, therefore, disputed the plaintiff's claim for inventiveness or originality in respect of the alleged inventions. The defendant, therefore, disputed the plaintiff's claim for inventiveness or originality in respect of the alleged inventions. It is mentioned by the defendant in the written statement that the plaintiff was manufacturing its products under collaboration agreement with Messrs. Keramag of Germany and that the plaintiff has suppressed the documents including the catalogue or literature issued by Keramag which would have shown prior knowledge, prior publication and lack of novelty and originality of the features forming the subject matter to the patent. The defendant denied infringement and submitted that even a most casual comparison of the two material objects would prove beyond doubt that the defendant's was not an imitation of the plaintiff. It is pointed out that the plaintiff had not made any attempt to establish acquiescence by the public, the extent of its use by the plaintiff and the amount of turnover of business in respect of wash basins containing the alleged invention etc. The defendant has reiterated prior knowledge and prior publication in catalogues and has disputed the plaintiff's exclusive right or privilege of making such products. The defendant has questioned the bona fides of the plaintiff's suit herein where the validity of the patent is pending before the Delhi High Court. The defendant has referred to the several materials in its catalogues bearing distinctive numbers which showed that the several features covering the present patent had already been in use in the defendant's products. The defendant claims to have manufactured such products since 1962. It is stated by the defendant that the patent was liable to be revoked and that the issue relating to revocation might be decided as a preliminary issue. 11. The plaintiff has filed a reply statement in which it has disputed the several statements in the written statement. It is unnecessary to go more into the averments in the reply statement at this stage. 12. The following issues have been framed : 1. Has this Court jurisdiction to entertain the suit for the reasons mentioned in paragraph 3 of the written statement ? 2. Is the suit liable to be dismissed or to be transferred to the High Court at Delhi, or, in any event to be stayed, for the reasons stated in paragraph 4 of the written statement ? 3. Has this Court jurisdiction to entertain the suit for the reasons mentioned in paragraph 3 of the written statement ? 2. Is the suit liable to be dismissed or to be transferred to the High Court at Delhi, or, in any event to be stayed, for the reasons stated in paragraph 4 of the written statement ? 3. Is the alleged patent No. 103411 taken out by the plaintiff liable to be revoked and should this question be tried as a preliminary issue as submitted in paragraph 10 of the written statement? 4. Is the plaintiff entitled to maintain this suit in this Court pending disposal of the defendant's application for revocation of the said patent in the Delhi High Court ? 5. Has there been laches on the part of the plaintiff in instituting the present suit as alleged in paragraph 6(b) of the written statement, and if, so, is the suit liable to be dismissed on this ground ? 6. Is the plaintiff entitled to an injunction restraining the defendant from infringing the plaintiff's patent No. 103411 marked as M.O.1 in the plaint by the manufacture or sale of the infringing wash basins marked as M.O.2 in the plaint or any other wash basins which is a counterfeit or imitation of the plaintiff's patented wash basins? 7. Is not the defendant bound to render a true and faithful account of the profits earned by it by the manufacture or sale of the infringing wash basins and pay over the same to the plaintiff by way of damages for the infringement committed ? 8. Is not the defendant bound to surrender to the plaintiff for destruction the entire stock of the infringing wash basins in the defendant's possession or in its custody ? 9. Was the registration of the plaintiff's patent obtained on false suggestion or representation or invalid as alleged ? 10. Has the defendant been manufacturing its wash basins since 1962 containing certain features of the plaintiff's patent as alleged ? ISSUE NO. 1. This issue raises the question of jurisdiction of this Court to entertain the suit. The objections to the jurisdiction are those set out in paragraph 3 of the written statement. It is pointed out there that the defendant is permanently carrying on its business in Haryana and has its registered Office in Calcutta outside the territorial jurisdiction of this Court. This issue raises the question of jurisdiction of this Court to entertain the suit. The objections to the jurisdiction are those set out in paragraph 3 of the written statement. It is pointed out there that the defendant is permanently carrying on its business in Haryana and has its registered Office in Calcutta outside the territorial jurisdiction of this Court. It is also stated that neither the cause of action nor any part thereof arose within the jurisdiction of this Court. According to the plaintiff, Joshi & Co., who are dealing in sanitaryware were carrying on business in Madras and were distributing the defendant's products. According to the defendant Joshi & Co., were only purchasing and selling its goods on their own and the defendant does not have any connection with such business. The challenge so made to the jurisdiction has not been substantiated by producing any evidence regarding the course of business between the defendant and Joshi & Co. so as to show that Joshi & Co., were only purchasing the products as they would have done from any other manufacturer. It is not disputed that the goods of the defendant have found their way into the Madras market. The relationship between Joshi & Co., and the defendant is within the knowledge of the defendant. It should, therefore, have placed appropriate materials before the court to show what kind of relationship was with Joshi & Co. In the absence of proper facts to the contrary being placed, I hold that the plaintiff's allegation that Joshi & Co., are the distributors of the defendant is correct. In this view, as the products are marketed through Joshi & Co., this court would have jurisdiction to go into the question of infringement. This issue is, therefore, found in favour of the plaintiff. ISSUES NOS. 2 and 4 Issue No. 2 raises the point as to whether the suit is liable to be dismissed or transferred to Delhi High Court, or, in any event, stayed for the reasons mentioned in paragraph 4 of the written statement. During the cause of the hearing the defendant admitted that it had asked for the materials filed in the Delhi High Court being transferred to this court so that the present suit could go on. During the cause of the hearing the defendant admitted that it had asked for the materials filed in the Delhi High Court being transferred to this court so that the present suit could go on. No argument was addressed on this issue and as conduct of the defendant is to require this court to go into the whole question, issue No. 2 has to be found against the defendant and in favour of the plaintiff. I may also add that the same point has in a way been discussed by N.S. Ramaswami, J. in Application 2340 of 1970 in the very case and to the extent relevant I agree, with respect, with his order thereon. I now take up issue No. 4. The point raised is whether the plaintiff is entitled to maintain the suit in this court pending disposal of the application for revocation of the patent in the Delhi High Court. The revocation application has been made under Section 26 of the Indian Patents and Designs Act, 1911. Revocation of a patent in whole or part may be obtained on petition to a High Court on all or any of the grounds set out in that Section. Clause (b) of that section enables the revocation if any invention was not a new invention within the meaning of that Act. Clause (e) thereof contemplates revocation where the applicant knowingly or fraudulently included in the application for a patent something which was not new. In paragraph 4 of the petition before the Delhi High Court marked as Ex P.S., the defendant has given the grounds on which the petition is liable to be revoked. The grounds are that the invention was not new, that there was no inventive step, that the specification did not sufficiently and clearly explain the scope of the invention and that the patent was obtained on a false suggestion or representation. The point now before me is whether the same question could be gone into in the present proceedings. The scope of the proceedings in this court and before the Delhi High Court has been examined in the Application No. 2340 of 1970. The scope is different as, though the issue as to the validity of the patent is common in both these proceedings, still the question of infringement is a separate and an independent issue. The scope of the proceedings in this court and before the Delhi High Court has been examined in the Application No. 2340 of 1970. The scope is different as, though the issue as to the validity of the patent is common in both these proceedings, still the question of infringement is a separate and an independent issue. The same matter is not an issue in both the proceedings. There is no bar to the maintainability of the present suit merely because the defendant has filed an application for revocation of the patent in the Delhi High Court. I would, therefore, answer this issue also in favour of the plaintiff and against the defendant. ISSUE NO. 3. This issue raises the point whether the patent No. 103411 taken out by the plaintiff was liable to be revoked. The grounds for revocation of the patent are the same as summarised above in the proceedings before the Delhi High Court. The main points put in issue are that there was nothing new in these so called inventions which have been patented, that there was no inventive step invoked and that the features which are claimed to be new were already known to the outside world. I may at this stage refer briefly to the relevant provisions of the Indian Patents and Designs Act, 1911. Section 2(8) of that Act defines "invention" as meaning any manner of new manufacture and includes an improvement and an alleged invention. Section 3 of the Act specifies the contents of an application for patent. Clause (3) thereof provides that the application must contain a declaration to the effect that the applicant is in possession of an invention; whereof he claims to be the true and first inventor and that such application must be accompanied by a specification and by the prescribed fee. Section 4 provides that the specification must particularly describe and ascertain the nature of the invention and the manner in which the same is to be performed. The Controller of Patents under Section 5 has to examine the application, and if he considered inter alia that the invention as described and claimed was prima facie not a manner of new manufacture or improvement, he might refuse the application or ask for amendment of the application. There is a provision for appeal against such refusal or requiring an amendment of the application. There is a provision for appeal against such refusal or requiring an amendment of the application. If he accepted the application, then he had to advertise the acceptance. Any person might, at any time within four months from the date of the advertisement, give notice of his opposition to the grant of patent. One of the reasons for the opposition could be that the invention has been publicly used in any part of India or that it had been made publicly known in any part of India. The Controller could then decide the issue. Under Section 10 of the Act if there is no opposition, or, in case of opposition, if the determination was in favour of the grant of a patent, the Controller could cause the patent to be sealed with the seal of the Patent Office. Under Section 12, a patent sealed with the seal of the Patent Office would confer on the patentee the exclusive privilege of making, selling and using the invention throughout India. The term of patent is 16 years as provided by Section 14 of the Act. The term of the patent could be extended under Section 15. I have already referred to Section 26, which enables a petition for revocation of patent. The defendant has taken action under this provision in Delhi. Section 20 enables a patentee to institute a suit in a District Court having jurisdiction to try the suit against any person who, during the continuance of a patent acquired by him under the Act, made, sold or used the invention without his licence, or counterfeited it, or imitated it. The present suit is under this provision. Section 38 provides that an invention shall be deemed a new invention if it had not, before the date of the application for a patent thereon, been publicly used in any part of India, or been made publicly known in any part of India. These are the relevant provisions of the Indian Patents and Designs Act, 1911. I have now to see whether this "invention" is a new one as contended by the plaintiff or whether it was known or in use in India previously as contended by the defendant. These are the relevant provisions of the Indian Patents and Designs Act, 1911. I have now to see whether this "invention" is a new one as contended by the plaintiff or whether it was known or in use in India previously as contended by the defendant. I think it proper to discuss the legal position first in order to appreciate the nature of the enquiry to be made for the purpose of settling this dispute before discussing the evidence, as such. In Farbverke Hoechst Aktiengesellschaft vormals Maister Lucius & Bruning a Corporation etc. v. Unichem Laboratories and others, 1969 AIR(Bombay) 255, which is the only Indian case brought to my notice, it has been pointed out that the objection on the ground of want of inventive step ultimately resolved itself into a consideration of the utility of the plaintiff's invention. Thus, if there was utility, then it would be an inventive step. In the present case the three features would be useful to the persons, who used these sanitaryware, for instance, anti splash rim would ensure the user against getting wet when using the wash basin etc. The semi punched holes would have utility to install fresh or more taps if needed. The concealed brackets would be useful for locating the wash basin etc, without the fixing being seen from outside so that it looks artistic. Therefore, having regard to this decision of the Bombay High Court, which I would follow with respect, I consider that there is an inventive step on the facts herein. Another objection placed before me by the defendant, as indicated earlier, is that the product was already known at the material time. The test with reference to this is formulated as follows in para 16 of the Bombay decision cited above : "Was it for practical purpose, obvious to a skilled worker, in the field concerned, in the state of knowledge existing at the date of the patent to be found in the literature then available to him, that he would or should make the invention the subject of the claim concerned ?" * In the same decision and in the same paragraph it is pointed out: "In order to support the objection, it is necessary for the defendants to show that the product was known in India. If the plaintiff could show that it was not obvious to a man in the art, even after notionally putting in his hands standard works on the subject as well as other scientific material on the subject then available in India, that he would or should make the invention which is the subject of the plaintiffs' patent, the defendants' objection must fail." * It is in the light of these requirements that the evidence in the case before me was let in. A large number of catalogues were marked. D.W.1 has produced Ex.D.1. He was examined on commission. He is the Sales Manager of Balsara and Co. (P) Limited, and has been in this line for 40 years. He has mentioned the year of publications of Ex. D.1 as 1940. At pages 197, 224, 292 of Ex. D.1, the features of anti splash are referred to. He has also stated that these features were known prior to 1966. Ex.D.1 is a catalogue of Sanitary Equipment Doulton & Co., Ltd. The learned counsel for the defendant pointed out that this document came into the possession of the witness only about 8 days prior to his giving evidence on 19th October, 1972, so that it would not prove prior publications or knowledge. The witness has given oral evidence showing that these features were known prior to 1966. It is true that Ex. D.1 is not shown to have been in his possession prior to 1966. However, I see no reason to disbelieve his oral evidence to show that these features were known prior to 1966. The second witness who was also examined on commission is one S.C. Shah, a partner in M/s. C. Bogilal and Company dealing in Sanitarywares etc. in Bombay. He has produced Ex.D.5, which is a catalogue of Ideal Standard Company. Several pages as referred to under answer to question No. 7 have been cited by the witness to show that these features were known since about 1958, which is the year of the catalogue. He has also produced Ex. D.8, which is a catalogue of Twyford Company with which the defendant is in collaboration. In answer to question No. 11, he has given reference to the several pages in which the features appeared. He has also stated that he had with him Ex. He has also produced Ex. D.8, which is a catalogue of Twyford Company with which the defendant is in collaboration. In answer to question No. 11, he has given reference to the several pages in which the features appeared. He has also stated that he had with him Ex. D.9, which is the catalogue of Czechoslovak Ceramics for about 15 years, which contains the anti splash rim as shown in answer to question No. 13. He has produced Ex. D.10, which is a catalogue of Shanks of the year 1957 in which in answer to question No. 17 he has pointed out the pages in which the anti splash system has been adopted. Ex. D.11 which is also a catalogue of Shanks was published in the year 1952 and shows the anti splash device at the several pages referred to in answer to question No. 17. He has also produced other catalogues referred to in the said answer. In addition, he produced a catalogue of Hindustan Twyfords Limited, that is of the defendant Company of the year 1964 which is marked as Ex. D.19. In the said catalogue several marked numbers in which these devices have been adopted have been referred to by him. The relevant details appear at page 24 of the typed script of the evidence recorded by the Commissioner. He has also encircled with red ink the relevant portions in the exhibit as asked by the counsel for the defendant in the said exhibit. His company was appointed the distributor of the defendant's products in 1964 and he has produced a file marked as Ex. D.20, which contains the numbers shown in the catalogue in which these devices had been adopted. His firm has a turnover of Rs. 50 lakhs and he has stated that he has been referring to and consulting the photographs in the catalogue so as to discuss with his customers, architects and manufacturer. In the cross examination he was asked to produce accounts showing the import of these products. He wanted time for this purpose. In answer to question No. 62, he has stated that they were able to get the holes punched according to the requirements of the customers at the dotted places as shown in the catalogue of the defendant. In the cross examination he was asked to produce accounts showing the import of these products. He wanted time for this purpose. In answer to question No. 62, he has stated that they were able to get the holes punched according to the requirements of the customers at the dotted places as shown in the catalogue of the defendant. The attack on the evidence was that he had not shown any import, at any rate, from the year 1958 from which alone he could have been aware of such imports when he joined the firm in 1958. It is also contended for the plaintiff that he was an authorised distributor of the defendant so that he was interested in giving the evidence. The fact that the firm in which he was a partner was a distributor of the defendant's products would, in my opinion, be a factor relevant in support of the defendant. The claim of the defendant is that these products were manufactured by it prior to 1966 and marketed in India. It is only through a person, who has marketed the products that the defendant can produce the testimony to support his case. The fact that he did not produce the account books cannot, in my opinion, be put against the acceptability of the testimony of the witness. He was not required to produce the book and he could not be asked to produce the books of some earlier periods at such short notice. Therefore, his failure to produce the books cannot, in my opinion, shake his testimony. I would, therefore, accept his evidence as regards the publication in use of these features in the defendant's products prior to 1966. D.W.3 is one B.K. Malhan, who has been in the Sanitaryware trade from 1946 and was the Managing Director of John Tinson & Co. (Pvt.) Ltd. from 1947 to 1971. John Tinson & Co. Pvt. Ltd. were the distributors of Standards and Royal Doulton Sanitaryware and Fixtures. He has stated that his Company has been importing these products from about 1949-50 and that this anti splash basins were installed in various buildings in Northern India and throughout India. He remembers to have imported these products for installation in Hotel Janpath when it was built sometime in 1950-51. He produced the catalogue of Standard Sanitary published in the year 1954, which contains anti splash and concealed brackets. He remembers to have imported these products for installation in Hotel Janpath when it was built sometime in 1950-51. He produced the catalogue of Standard Sanitary published in the year 1954, which contains anti splash and concealed brackets. He did not, however, have any literature regarding semi punched holes. He has referred also to the several pages in which anti splash rim appeared in the catalogue Ex. D.22. See his answer to question No. 7. He has also referred to the catalogue of American Standard of the year 1959 and of Standard Sanitary of the year 1963 marked as Ex. D.23 and D.24. In answer to question No. 10 he has stated that Ex. D.23 and D.24 were received between 1954 and 1963 and that he referred to these catalogues for his own personal work in cross examination he stated that his company did not have any register of receipts to show the receipt of these documents. It is the answer which has been relied on by the learned counsel for the plaintiff as showing that these catalogues were not actually received at any time prior to the plaintiff's patent. I am unable to accept this objection, as I see no reason to disbelieve his testimony that these catalogues were received between 1954 and 1963. There is no motive for him to give evidence in favour of the defendant. He is in my opinion an independent witness whose testimony is entitled to the highest weight. D.W.4 is one R.L. Sharma, who was connected with Rodda & Co. as its officer in charge. That Company took up sanitary business in 1962. He has referred to the defendant manufacturing sanitaryware containing these features in answer to question No. 4. He has also stated that semi punched holes were existing in sanitaryware from the date his firm took up the distributorship of the defendant's products, that is in 1962. He has shown the numbers assigned to the sanitryware in the defendant's catalogue incorporating these features and the bills dated from 23.10.1962 showing their sales. In answer to question No. 9 he has stated that the defendant's catalogue was printed in 1964. I see no reason to reject his testimony also. The fact that his company was dealing with the distribution of the defendant's products, is, as already pointed out, not a factor militating against the acceptance of his evidence. In answer to question No. 9 he has stated that the defendant's catalogue was printed in 1964. I see no reason to reject his testimony also. The fact that his company was dealing with the distribution of the defendant's products, is, as already pointed out, not a factor militating against the acceptance of his evidence. The other witness examined on commission was M.P. Jain, who is one of the partners of Messrs. Mahavir Parsad & Sons in Delhi. He produced two catalogues Exs. D.37 and D.38 relating to Czechoslova Ceramics and Kermag respectively. Kermag is the company with whom the plaintiff has collaboration. In Czechoslova Ceramics Products, whose catalogue was of the year 1955, there were anti splash features and semi punched holes and concealed brackets. The relevant data was given in answer to question No. 14. The catalogue of Kermag viz., Ex. D.38 was of the year 1960 as mentioned by him in answer to question No. 12. The attack on his evidence was that he had not brought any material to show that these catalogues were received in the year viz., 1955 or 1960. He has pointed out that the Company maintained only a despatch register and not a receipt register. This is nothing unusual. A despatch register is maintained to serve as a voucher for the postage expenses. A receipt register has no such use. Therefore, the fact that he did not produce a register for receipt of these catalogues cannot be put against him. He cannot be asked to produce what his Company did not maintain. He has, however, stated that these catalogues were received in 1955 and 1960, in the same year in which they were published. I see no reason to reject his testimony also. The last witness examined on commission was D.K. Chakravarti (D.W. 6) who was connected with S.K. Chakravarti Limited of Calcutta. He stated that this anti splash rim was in existence outside this country for about 20 years and that Hindustan Twyfords were the first people to introduce the device in the business as early as 1962 or 1963. He produced Ex. S.D. 39 and D.40 of Standard Sanitary and Hindustan Twyfords. In answer to question No. 13 he has stated that the Indian catalogue was printed in 1964 which contained the anti splash basin. See answers to questions 14 onwards. He produced Ex. S.D. 39 and D.40 of Standard Sanitary and Hindustan Twyfords. In answer to question No. 13 he has stated that the Indian catalogue was printed in 1964 which contained the anti splash basin. See answers to questions 14 onwards. He has also stated that semi punched holes were also introduced by Hindustan Twyfords prior to 1966. See in particular his answers to questions 15 and 20. He was asked in cross examination as to whether he had any materials to show that the relevant goods were imported. The obvious reference to the Standard Sanitaryware was the catalogue (Ex. D.39) produced by him. He stated that he had not brought the document and that if he searched properly, he would be in a position to show the import. His evidence also, in my opinion, is acceptable and there is nothing to show that he was trying to accommodate the defendant by giving evidence in the manner done by him. I may now consider the evidence recorded before me as contrasted with the evidence recorded by the Commissioner. D.W 7 is V.S.S. Bhatt, who is the Vice-President of the defendant company. He is an expert in ceramics and he is one of the very few persons who were members of the Institute of Ceramics in the United Kingdom. The standard of admission of the said Institute can be known from the fact that the former Director General of the C.S.I.R. Dr. Athmaram was one of such members of that Institute and there are barely 5 or 6 who are members of this institute from India. In his evidence he has spoken to several catalogues which came into his possession. In particular, he marked Ex. D.41, which is a diagram bearing the signature of one Mr. Ellis which he got when he went to United Kingdom in the year 1961. He was seeking to prove the signature of Ellis on the basis that he had known Mr. Ellis. He has also stated that these features which are said to have been patented were in use by the defendant in its products prior to 1966. The learned counsel for the plaintiff submitted that Ex. D.41 was not an authentic piece of evidence to show that this diagram was actually prepared by one Mr. Ellis and in use abroad. It is unnecessary for my present purpose to rely on Ex. The learned counsel for the plaintiff submitted that Ex. D.41 was not an authentic piece of evidence to show that this diagram was actually prepared by one Mr. Ellis and in use abroad. It is unnecessary for my present purpose to rely on Ex. D.41 at all. There is overwhelming testimony in the shape of the evidence discussed already which shows clearly that the features which are said to be patented were all in use in India in the defendant's products and also in the other products which were imported to India. Having observed him in the witness box, I am not satisfied that his evidence should be rejected merely because he happened to be associated with the defendant company as its employee. On going through the evidence, I am satisfied that the several catalogues which were received by him either in his visits abroad or when he was in India show the features on which the patent has been taken. Apart from him two other witnesses have given evidence, one of them is V.R. Lakshmi Rattan, who has been examined as D.W 8. He has produced a number of catalogues Exs. D.53 to D.57. He has been in this line of dealing in sanitaryware for years. He has absolutely no connection with the defendant company. I see no reason why I should reject his evidence insofar as he says that all these features were in use in imported products of which he himself was aware prior to 1956. The last witness is one S.V. Joshi, who is a dealer in the defendant's products. He has produced Exs. D.58 to D.62. One of them is a catalogue Ex. D.58 in which his father's signature appears. That signature was dated 1938. He was also one of the distributors of the defendant's products and he has stated that these features were known prior to 1966 and used in the defendant's products which he had been distributing since 1962. The attack on his testimony in so far as it related to Ex. D.58 is concerned was that the catalogue was not available for use by the public. In effect Mr. The attack on his testimony in so far as it related to Ex. D.58 is concerned was that the catalogue was not available for use by the public. In effect Mr. Chellaswami's point was that this catalogue was preserved as a kind of a heirloom safely deposited in a steel almirah completely kept out of the reach of any person, as a kind of holy relic, not to be touched but worshipped only from a distance. His testimony shows that he has tried to preserve it because it contains his father's signature of the year 1938, but still I am unable to accept the criticism of the plaintiff's counsel that it was kept away from everybody as a kind of holy relic not to be touched or even looked into by any outsider. I may notice a little later the contention of the learned counsel of the defendant that even the disclosure to one person of the features claimed as inventions earlier than the so called invention would be enough to discredit the claim of novelty which is the essential basis for a patent. I accept his testimony also as true. In connection with Ex. D.58, the learned counsel for the plaintiff referred me to the decision in Otto v. Steel, 3 RPC 109. The relevant passage brought to my notice is at page 113. In that case the owner of a patent brought an action for infringement. The defendant to the action admitted infringement, but alleged that the patent was invalid on the ground of anticipation. The defendant sought to prove anticipation by referring to a book which was in the inner library of British Museum. It may be mentioned herein that the inner library is not easily accessible. With reference to this aspect Pearson J., held at page 114 that the simple fact that the book was to be found in the inner library of the British Museum was not sufficient publication for him to hold that whatever was found in that work had become part of the public stock of common knowledge. This decision has been referred to at page 271, paragraph 270 of Terrell on the Law of Patents and it has been pointed out that whether or not the document was ordinarily accessible to the public appeared to be the crucial test. This decision has been referred to at page 271, paragraph 270 of Terrell on the Law of Patents and it has been pointed out that whether or not the document was ordinarily accessible to the public appeared to be the crucial test. There is a reference to a German specification placed on the shelves of the Patent Office library to which members of the public had access which was taken as a sufficient publication, in Haris v. Rothwell, 4 RPC 225. There is also another case where a document had been obtained from South Africa by an employee of a company, and where it was held as the document had been communicated to a single member of the public without any inhibiting fetter, it was enough publication, Bristol Myres & Co. (Johnson's) Application, 1969 RPC 149. This case was cited by the learned counsel for the defendant as showing that even the disclosure to a single person without any inhibiting factor was enough to show publication. Therefore, the fact that the catalogue came into possession of Joshi's father and was available for his use would be enough publication within the scope of the Patent Law so as to destroy the theory of novelty of the invention. I accept this submission. Thus even assuming that it was preserved as in heirloom the plaintiffs case does not get advanced thereby. During the course of the arguments the learned counsel for the defendant brought to my notice a book on Plumbing by E.G. Blake published in the year 1948 which had been donated to the library of the Indian Institute of Technology on 27th July, 1959. At page 184 of the book there is a reference to the concealed brackets used by Doulton's and also to the anti splash rim to prevent water from slopping over the side. This book also has been available in India in 1959 and, therefore, it would clearly show that there is no novelty in the invention. For my present purpose it is unnecessary to go even beyond the defendant's products having been in the market prior to 1966 in which these factors have been in use. The main part of the cross examination of V.S.S. Bhatt by the plaintiff's counsel was to show that the particular expressions used by the plaintiff were not to be found in any of the defendant's products. The main part of the cross examination of V.S.S. Bhatt by the plaintiff's counsel was to show that the particular expressions used by the plaintiff were not to be found in any of the defendant's products. In a patent action the question has to be considered from the angle as to how all the persons in this particular type of business are likely to make out from these catalogues and diagrams. If they could understand the features by some kind of a marking of the catalogue then that would be enough to bring to the notice of the public the particular feature. Use of any particular expression to denote the idea is not an essential part of the patent. The fact that the semi punched holes in the defendants catalogue are shown by the dots has no significance. Taking into account the catalogue of the defendant, and others and the standard or test to find out prior knowledge and publication, I am satisfied that in the present case there was prior knowledge and publications of the relevant features claimed as invention in the patent. In this view, the patent itself is open to question and has to be revoked under Section 2(e) of the Act. As the defendant has been using these devices earlier, the patent is also liable to be revoked under Section 26(i) of the Act. This issue is, therefore, found in favour of the defendant. There is no need to go into the question as to whether it has to be tried as a preliminary issue because all the issues are being dealt with in the judgement. ISSUE NO. 5 This raises the question of laches. I do not think it necessary to go into this question in any detail. It is enough for me to say that the bringing of the suit in the year 1970 does not show any evidence of laches as the plaintiff came to know of the infringement only in or about 1969. I would, therefore, answer this issue in favour of the plaintiff. ISSUE NO. 6: The point raised is whether the plaintiff is entitled to an injunction restraining the defendant from infringing the plaintiff's patent. I have already discussed the evidence to show that the defendant has been manufacturing these products with these features since about 1962. Therefore, there is no question of any infringement of the patent. ISSUE NO. 6: The point raised is whether the plaintiff is entitled to an injunction restraining the defendant from infringing the plaintiff's patent. I have already discussed the evidence to show that the defendant has been manufacturing these products with these features since about 1962. Therefore, there is no question of any infringement of the patent. This issue is, therefore, found against the plaintiff. ISSUE NO. 7: It raises of question of accounting. When there is no infringement, there is no question of any accounting or damages. This iething similar to it the test of infringement is the same as in an action for passing-off. In other words, the test as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing-off actions." 17. Delhi High Court in M/s. Hindustan Pencils Pvt. Ltd. V. M/s. India Stationary Products Co. and another reporte ssue is, therefore, found against the plaintiff. ISSUE NO. 8 : This raises the point regarding the surrender of the defendant's products for destruction. This issue does not arise for consideration in view of the answer given earlier to Issue 7 that there is no question of infringement. This issue is, therefore, decided against the plaintiff. ISSUE NO. 9: This is regarding the validity of the registration of the plaintiff's patent. The suggestion for the defendant is that the patent was obtained on false suggestion or representation. I have already discussed the evidence to show that there is no novelty about this invention. There is no question of any new manufacture or any improvement within the meaning of Section 2(8) of the Indian Patents and Designs Act, 1911, as these features had been in use in imported and locally manufactured products prior to 1966. This issue is, therefore, to be found in favour of the defendant. ISSUE NO. 10: This raises the point as to whether the defendant has been manufacturing their wash basins since 1962 containing the features of the plaintiff's patent as alleged. I have already discussed the evidence to show that the defendant has been manufacturing such products since about 1962. For this purpose I rely on Ex. D.19, D.20, D.25, D.26 and the oral evidence of all the D.W's. Hence, this is also found against the plaintiff. The suit is dismissed with costs. The relevant certificate under Section 32 of the Act will issue. For this purpose I rely on Ex. D.19, D.20, D.25, D.26 and the oral evidence of all the D.W's. Hence, this is also found against the plaintiff. The suit is dismissed with costs. The relevant certificate under Section 32 of the Act will issue. A copy of this judgement will be sent to the Controller of Patents & Designs in accordance with Section 33 of the Indian Patents & Designs Act, 1911.