JUDGMENT : Manju Goel, J. 1. This application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (in short 'CPC') seeks interim injunction to restrain the defendants from infringing the copyright of the plaintiffs in their industrial drawings by way of manufacture, assembly or sale of excavator loaders, from reproducing the copyright works of the plaintiffs in any material form and from passing off the products of the defendants as those of the plaintiffs. The application was taken up for hearing along with the suit at the time of preliminary hearing. On 30.3.2006 notice was ordered to be issued on this application. At the same time an order of ex parte injunction was passed directing that the defendants shall not make any supplies of excavator loaders marketed by them under the name 'ACE AX 130' which was apparently identical to the plaintiffs' excavator loaders which bears the model 'JCB 3D' till the next date of hearing. The injunction has continued thereafter. Plaintiff's case 2. The plaintiffs files the suit with a prayer for injunction on the basis of the following story: Plaintiff No. 2 is a wholly owned subsidiary of plaintiff No. 1. They are manufacturers of a construction and materials handling machinery including Backhoe Loaders, Hydraulic Excavators, Articulated Loading Shovels and parts, attachment and components thereto. They are owners of the trade marks 'JCB' and 'JCB logo'. During the joint venture agreement between the two plaintiffs they entered into a technical collaboration by virtue whereof the second plaintiff obtained licence to manufacture and assemble the two-wheel drive excavator loader in India. The second plaintiff received from the first plaintiff- (a) The product designs, specifications, drawings and other information for the product and sub-assemblies thereof; (b) Reproduceable drawings, specifications and written descriptions of manufacturing methods and processes involved; (c) Detailed drawings showing parts of the product designed by the first plaintiff and technical characteristics and dimensions of components not designed by the first plaintiff. Since then the second plaintiff has been manufacturing and marketing the product. The product has been upgraded from time-to-time with the technical assistance and research and development of the first plaintiff. The nomenclature given to the product are Escorts JCB 3C Mark III, Escorts JCB 3C Mark IV, Escorts JCB 3C Mark V, Escorts JCB 3D, JCB 3D, etc. Since then the second plaintiff has been manufacturing and marketing the product. The product has been upgraded from time-to-time with the technical assistance and research and development of the first plaintiff. The nomenclature given to the product are Escorts JCB 3C Mark III, Escorts JCB 3C Mark IV, Escorts JCB 3C Mark V, Escorts JCB 3D, JCB 3D, etc. The product consisted of 76 horse power diesel engine with synchro-shuttle gear box, fully welded steel chassis with fuel and hydraulic tanks forming an integral part of the structure; and a shovel mounted on a loader-arm in the front, capable of picking, moving and dumping loose material. The product also had certain other options like four-wheel drive, 96 horse power engine, etc. and attachment for the front and rear end of the machine. In the middle of the year 2005 the plaintiffs have introduced new models, namely, JCB 3D Super Model, JCB 3DX Model and JCB 3DX Super Model. The JCB 3D model and its other improvements have certain distinct appearance which are associated with JCB Backhoe Loaders. The appearance of the JCB Excavator Loader also has a unique identity. These features are unique to JCB and are not being used by any other Excavator Loader manufacturer in India and abroad. The uniqueness of this product lies in various parts of the loader like the Excavator Bucket, the Tipping Link, the Tipping Lever, Hydra-clamp Cylinder, Front Axle Beam, Steering Wheel with Spinner Knob, Loader Console, Excavator Console, Loader Lever Knob, Excavator Lever Knob, Stabilizer Level Knob, Engine Stop Cable Knob, Gear Change Lever Knob, Cabin Roof, Lever Linkage Mechanism for locking rear window. 3. The second plaintiff introduced in India the concept of Excavator Loader in 1979 and put in enormous efforts in the marketing of the product and in spreading awareness and educating the members of trade and public about the useful application of the product. 4. Simultaneously, the design engineer team of the plaintiffs has been continuously working on the drawing of the products and to develop this concept for a higher range of applications. Till date a huge number of excavators and loaders have been manufactured and sold based on these design concept. 4. Simultaneously, the design engineer team of the plaintiffs has been continuously working on the drawing of the products and to develop this concept for a higher range of applications. Till date a huge number of excavators and loaders have been manufactured and sold based on these design concept. The unique configuration of the product obtained by the second plaintiff were reduced in the form of industrial drawings which were made by in-house research and development department of the first plaintiff and, therefore, the plaintiffs have a copyright in the original industrial drawings used in the manufacture of the product and its part. By virtue of the Copyright Act, 1957 the plaintiffs have, inter alia, the exclusive right to reproduce work in any material form including depiction in three dimensions of a two dimensional work. The three dimensional reproduction of the drawings are incapable of being registered under the Designs Act, 1911 or under the Designs Act, 2000. Nonetheless, the plaintiffs have a copyright on the industrial drawings. 5. The plaintiffs have copyright in some key components of the product. The plaintiffs also have a copyright in the drawings by virtue of the provisions of Copyright Act. Only plaintiffs have an exclusive right to reproduce the work in any material form including depiction in three dimensions of a two dimensional work. Apart from the drawings depicting the aforesaid products the plaintiffs also claim copyright in some key components of the products. 6. The second plaintiff and M/s. Escorts Limited had entered into a Sale and Purchase agreement dated February 13, 1979 by virtue of which Escorts Limited was to market the products of the second plaintiff. The defendant No. 2 was an employee for about six years at the Escorts Ltd. and was exposed to the entire production line and had opportunity to interact with the representatives of Escorts Ltd. and its subsidiary, their dealers and customers from all over the country. In 1992, the defendant No. 2 left the employment of Escorts Ltd. In 1997, the defendant No. 2 was found to have set up defendant No. 1 concern which started manufacturing pick-n-carry cranes identical in design, specification, etc. to those of Escorts Limited. In 1998, it was also found that defendants were attempting to introduce in the market excavator loaders in violation of the right of plaintiffs in respect of the aforesaid JCB 3D Model. to those of Escorts Limited. In 1998, it was also found that defendants were attempting to introduce in the market excavator loaders in violation of the right of plaintiffs in respect of the aforesaid JCB 3D Model. The defendants manufactured excavator loaders which were exact replica of JCB 3D Model of the plaintiffs. The defendants attempted the reverse engineering process which they were not entitled to do. Further, the defendants were also attempting to purchase the very same engines being RB44 as were used in the plaintiffs JCB 3D product. The second plaintiff along with Escorts Ltd. instituted a suit being S. No. 959/1998 to protect its rights and the trade secrets. The defendants furnished an undertaking before the Court stating that they will not introduce in the market excavator loader in violation of the copyright of the plaintiffs, if any. The undertaking was recorded on 22.5.1998. The defendants exhibited a product exactly similar to the design and specifications of the plaintiffs' JCB 3D Model in an exhibition held at Bangalore. The machine of the defendants are entirely identical to that of the plaintiffs and the same can be possible only when the product of the defendants is based on the industrial drawings created and developed by the Research and Development team of the plaintiffs. The defendants while copying all the essential and basic features of the plaintiffs' product, have introduced minor variations in their product by modifying certain parts and components which include parts like Main frame (chassis), Kingpost Carriage, Boom, Dipper, Axle Rear Drive, Synchro Reversing Shuttle Gear Box Transmission, Kingpost, Stabilizer Legs. Contempt proceedings have been initiated against the defendants for violation of the undertaking. The defendants have given the same external appearance to the product as that of the plaintiffs. The defendants are also creating an impression to the members of the public and the trade that they are in some way affiliated or connected with the plaintiffs. The defendants are attempting to pass off their product as those of the plaintiffs. The plaintiffs being the owner of the copyright have the exclusive right to reproduce and depict in three dimensions the drawings of the product and to make adaptation of the drawings. The defendants are attempting to pass off their product as those of the plaintiffs. The plaintiffs being the owner of the copyright have the exclusive right to reproduce and depict in three dimensions the drawings of the product and to make adaptation of the drawings. The plaintiffs, therefore, seek for a decree for permanent injunction to restrain the defendants from infringing the copyright of the plaintiffs in the industrial drawings in respect of JCB 3D, JCB 3D Super Model, JCB 3D, JCB 3DX Model and JCB 3DX and from reproducing copyright works of the plaintiffs in any material form and from passing off their product. Further relief sought is handing over of the industrial drawings, moulds and promotion material, stationery, etc. and recalling the products in the market and certain other reliefs. Defendant's case 7. The defendants contest the suit of the plaintiffs denying all material allegations made therein and contends, inter alia, that the plaintiffs are merely trying to stifle a healthy competition, that the claim of the plaintiff is hit by Section 15 of the Copyright Act. The defence version is as under: That Backhoe Loaders used to excavate soil and mud and are well known in construction industry for the last several decades and there is nothing unique in the machine manufactured by the plaintiffs. Most of the parts and equipment are available in the markets off-the-shelf. A large number of manufacturers are involved in manufacturing these loaders. The defendants are one of the leading manufactures of construction equipment in India. Loaders manufactured by most of the companies look identical. The parts contained in the Backhoe Loaders are manufactured by well known companies like COSMOS, Fibre Glass Products and Sundram Industries Ltd. The parts on which the plaintiffs are claiming copyrights are all standardised parts which are available openly in the market even in Delhi. The drawings submitted by the plaintiffs are drawings of 38 insignificant and cosmetic components. The Backhoe Loaders consist of more than 1500 compo­nents and out of these the plaintiff is mentioning only 38 items which are, in fact, available in the open market and the plaintiffs have no copyright of them. The plaintiffs have not disclosed the basic facts required for establishing copyright and drawings, namely, the name of the author/authors of drawings, the year of publication of drawings, status of the authors and the like. The plaintiffs have not disclosed the basic facts required for establishing copyright and drawings, namely, the name of the author/authors of drawings, the year of publication of drawings, status of the authors and the like. The plaintiffs have failed to obtain any patent for their products. The plaintiffs even otherwise have lost such copyright which they may have had in those drawings on account of the fact that more than 50 reproductions have been made from such drawings, even as per the case of the plaintiffs. The defendants have a complete team of engineers, designers and employees who are involved in manufacturing and selling Backhoe Loaders. Almost all loaders look similar in appearance. That does not prove any kind of infringement of any copyright or of any piracy. Findings: 8. Admittedly there is no registration under the Designs Act, 1911 or Designs Act, 2000. Accordingly so far as the design of the machine is concerned there is no copyright available with the plaintiffs. The defendants have claimed that the product has been manufactured more than 50 times and, therefore, Section 15 of the Copyright Act takes away any copyright in the design of the machine. The Counsel for the plaintiffs, however, clarified that the plaintiffs are actually not claiming any right over the design and that the plaintiffs are only seeking its copyright in the drawings. It is pointed out that the drawings are covered under the definition of artistic work in Section 2(c) of the Copyright Act, which is as under: "2(c). 'artistic work' means- (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) an (Work of architecture); (iii) any other work of artistic craftsmanship." 9. Thus, drawings become artistic work under Section 2(c) of the Copyright Act. Section 13 of the Copyright Act stipulates works in which copyright subsists and an original artistic work is included in Section 13(1)(a). Section 14 defines the meaning of a copyright and the relevant portion is as under: "14. Meaning of copyright-For the purposes of this Act, 'copyright' means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely" (a).............. (b)............... (c) in case of an artistic work. Meaning of copyright-For the purposes of this Act, 'copyright' means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely" (a).............. (b)............... (c) in case of an artistic work. (i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work; (ii) to communicate the work to the public; (iii) to issue copies of the work to the public not being copies already in circulation; (iv) to include the work in any cinematograph film; (v) to make any adaption of the work; (vi) to do in relation to an adaption of the work any of the acts specified in relation to the work in Sub-clauses (i) to (iv)..." 10. Thus the law does protect copyright in drawings. Section 15 deals with the special provisions regarding copyright in the designs registered and capable of being registered under the Designs Act, 1911 and reads as under: "15. Special provision regarding copyright in designs registered or capable of being registered under the Designs Act, 1911- Copyright shall not subsist under this Act in any design which is registered under the Designs Act, 1911 (2 of 1911). Copyright in any design, which is capable of being registered under the Designs Act, 1911 (2 of 1911), but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright, or, with his licence, by any other person." 11. The aforesaid provisions read together clearly means that copyright in any design which is registered under Designs Act 1911 or which is capable of being registered under the Designs Act, 1911, does not subsist once the article has been reproduced for more than fifty times. The plaintiffs contend that the drawings in question are not capable of being registered as designs. 12. The defendants, however, contend that the designs of the three dimen­ sional work can be registered. The defendants, in fact, have a certain registration under the Designs Act for their own product. The case, however, has to be looked into from the other angle as stated above. 12. The defendants, however, contend that the designs of the three dimen­ sional work can be registered. The defendants, in fact, have a certain registration under the Designs Act for their own product. The case, however, has to be looked into from the other angle as stated above. The plaintiffs seek protection under the Designs Act not on account of design of the product which actually means only the feature of established configuration, pattern or ornament applied to any article which appeal to the eye. If that be so, the plaintiffs cannot sue the defendants on account of the similarity of the outward looks of the product or its component because the outward looks are only designs over which the plaintiffs cannot claim any copyright. The photographs placed by the parties show that all loaders look more or less the same just as all cranes, television sets or other industrial products of common use do. 13. In order to show that the product of the defendants is based on drawings similar to that of the plaintiffs, the plaintiffs have filed affidavits of two experts, one of whom is an employee of the plaintiffs themselves. These experts have compared 38 parts of the excavator loader manufactured by the defendants with corresponding parts of the loader manufactured by the plaintiffs and have given an opinion that these parts are identical on all dimensions and specifications and are also same in appearance. These opinions are based entirely on visual inspection or on outward appearance of the components. 14. The plaintiffs claim that from the outward look of the products it can be assessed that the drawings for these components are also the same and that the defendants, in fact, had obtained the drawings by a process of reverse engineering. 15. The plaintiffs have filed the drawings on the basis of which the plaintiffs product is manufactured in a sealed cover. The plaintiffs have also filed copy of a judgment in a previous suit between the parties/their sister concerns. The plaintiffs have also filed the photographs of the machines and the parts thereof to show the similarity. The defendants did not file the drawings of the defendants' product till the hearing of the injunction matter but at the time of hearing of the injunction matter, the defendants have filed their own drawings. The plaintiffs have also filed the photographs of the machines and the parts thereof to show the similarity. The defendants did not file the drawings of the defendants' product till the hearing of the injunction matter but at the time of hearing of the injunction matter, the defendants have filed their own drawings. The defendants have also filed photographs of the drawings of the machine to show the dissimilarity between the machines. The defendants further allege that the product of the plaintiffs or any part of it has not been protected under the Designs Act. The defendants dispute the opinion of the experts and allege that one of the so-called expert is only an employee of the plaintiffs and that the other expert has done nothing other than signing a copy of the affidavit filed by the plaintiffs' employee. 16. Needless to say that both parties cited judgments and have taken the Court through the law on this aspect. At this stage only a prima facie finding can be returned. The plaintiffs claim that 38 components of the machines are absolutely identical. The defendants dispute the same. I have been taken through the photographs of the components as given by the plaintiffs and the photographs of the components as given by the defendants. Some of the photographs of the plaintiffs themselves show that the components are not exact replica of each other. For exam pie, the comparative photographs submitted at page 212 of the paperbook clearly show the distinction of the component which looks like a car gear. The plaintiffs product has three steps where as the product of the defendants has 5 steps. At page 204 of the paperbook, the two steering wheels of the two machines are also distinct. The defendants brought steering wheels of its own product to show that the steering wheel had only two radials from the centre to the circumference whereas that of the plaintiffs has three. The photograph is, however, so taken as to conceal the half of the defendants' steering wheel. 17. Similarly distinctions are visible in the photographs of the tipping link. However, the hydro-clamp cylinder of the plaintiffs as well as that of the defendants appear identical with even the numbers marked thereon being the same. The photograph is, however, so taken as to conceal the half of the defendants' steering wheel. 17. Similarly distinctions are visible in the photographs of the tipping link. However, the hydro-clamp cylinder of the plaintiffs as well as that of the defendants appear identical with even the numbers marked thereon being the same. The plaintiffs have given three schedules along with the report of the two experts which are virtually the same mentioning the different components of the machines. The A part of the report shows the parts which are 'same in terms of measurement/ specifications'. The B part shows the parts which are 'similar in terms of appearance'. These are 10 components. In part C the plaintiffs has listed 9 items which are not identical, i.e., 'have been modified'. The defendants have given a chart showing which component constitutes how much of the machine and it is clear from this that the 38 parts, which according to the plaintiffs, are identical constitute a very small part of the machine. It is also shown by the chart that the main frame of the machine consists of the parts which are admittedly not similar, namely, Main frame (chassis), Kingpost Carriage, Boom, Dipper, Axle Rear Drive, Syncro Reversing Shuttle, Gear Box Transmission, Loader Arm, Kingpost, Stabilizer Legs. The Backhoe Loader has 1500 parts, of which only 38 are said to be similar. 18. The defendants say that the parts which are disputed by the plaintiffs are so insignificant that the defendants should not be restrained from selling the machines. According to the defence Counsel, 38 components form not more than 5% of the entire body of the machine. 19. Learned Counsel for the plaintiffs reiterated that the plaintiffs were actually seeking copyright in the drawings of the vehicle/machine and not in the designs of the machine. It is not the plaintiffs' case that the defendants have actually physically stolen the design or have copied it directly. The case of the plaintiffs is that the defendants have reached the drawings by reverse engineering and there­ after produced their product based on the drawings so reached. Thus, the plaintiffs have not been able to lay their hands on the drawings on the basis of which the machine of the defendants is manufactured. The case of the plaintiffs is that the defendants have reached the drawings by reverse engineering and there­ after produced their product based on the drawings so reached. Thus, the plaintiffs have not been able to lay their hands on the drawings on the basis of which the machine of the defendants is manufactured. Nonetheless the case of the plaintiffs is that since the parts/components are so visually similar that the similarity could not have been possible without the drawings being the same. Thus, the plaintiffs' case is that the similarity of the product themselves showed the similarity of the drawings. Thus, the plaintiffs' allegations that the right of copyright of the plaintiffs in the drawing has been infringed is based on inference rather than on any direct evidence. 20. As stated above, the certain dissimilarity in the 38 components which are alleged to be similar is also clear to open eyes. It remains for an expert to examine the components carefully to find out whether they are actually same or similar and whether the drawings which are the basis of these components were the same. Since the parties have filed their respective drawings it may be possible to appoint an independent expert who may go through the drawings and give an opinion to the Court as to whether the drawings of the defendants are pirated versions of the drawings of the plaintiffs. On a prima facie view it is not possible for this Court to hold that the drawings which are the basis of the 38 components are the same as the drawings which are the basis of the plaintiffs' product. So far as the 9 components forming the main body of the machine are concerned, the dissimilarity is admitted by the plaintiffs. Therefore, prima facie the drawings for the main body of the machine has to betaken as different. It is, therefore, difficult to say that the plaintiffs have a prima facie case on facts. On behalf of the plaintiffs, it is contended that the defendants have not employed any expert to compare the two machines or their components and, therefore, there is no rebuttal of the experts' opinion presented by the plaintiffs. So far as one of the two experts, Mr. Raghuraj Dayal, is concerned, he is an employee of the plaintiff No. 2 and his designation is Deputy General Manager, Marketing. So far as one of the two experts, Mr. Raghuraj Dayal, is concerned, he is an employee of the plaintiff No. 2 and his designation is Deputy General Manager, Marketing. He says in his affidavit that that on receiving information that defendants offending product, AX-130, was being used at a construction site at White Field, Bangalore, he along with Mr. Samir Dass, Deputy General Manager-Engineering and Mr. Kashmira Lal, Manager-Engineering, JCB India Ltd., visited the site and inspected the product. He then says that the offending Excavator Loader of the defendants was inspected for technical specification and dimensions of certain important components in the presence of its operator and the detailed inspection report was attached therewith. It is then followed by the three lists as mentioned earlier. Obviously this officer is not an expert in the technical sense. The plaintiffs then filed the affidavit of Mr. C.K. Bhatia who says in his affidavit that he is a qualified Chartered Engineer with the Institute of Engineers (India), Kolkata. He also then adds the three lists to his affidavit. As stated earlier the lists annexed to the two affidavits are identical. On behalf of the defendants it is contended that Mr. C.K. Bhatia has done nothing other than repeating what Mr. Raghuraj Dayal has stated. It is further stated that the second expert has even used the same photographs as taken by Mr. Raghuraj Dayal. At this moment, I do not want to discredit either Mr. C.K. Bhatia or Mr. Raghuraj Dayal for eventually it will depend upon the evidence to be led by the parties and expert opinion being rendered in the witness box that will decide the matter. 21. It is only prima facie view that this Court has to take and the photographs themselves do show that the components are not exactly the replica of each other. 22. The sum total of the above narration is that the plaintiffs have not been able to establish a prima facie case on facts. 23. The next is the question as to whether the plaintiffs can be granted an injunction on the consideration of irreparable damage or balance of convenience. The plaintiffs have submitted that the plaintiffs will suffer irreparable loss if the defendants are not restrained. A judgment of this Court in a previous action by Escorts Construction Equipment Ltd. & Anr. 23. The next is the question as to whether the plaintiffs can be granted an injunction on the consideration of irreparable damage or balance of convenience. The plaintiffs have submitted that the plaintiffs will suffer irreparable loss if the defendants are not restrained. A judgment of this Court in a previous action by Escorts Construction Equipment Ltd. & Anr. v. Action Construction Equipment Pvt. Ltd. & Anr., 77 (1999) DLT 276=1999 PTC 36 (DEL), is cited to explain the very purpose of protecting copyright. It is stated in this judgment that the purpose behind such protection is to encourage inventive activities and investments in research and development. It is further opined in this judgment that unless the owners of such copyright are adequately protected new inventions and innovations will not be encouraged and the industrial programmes of the country will be hampered. The plaintiffs' Counsel say that the plaintiffs have spent, time energy and money in developing the drawings whereas the defendants merely copied the research carried out by the plaintiffs and if the defendants are permitted to make use of the plaintiffs' research, the plaintiffs will suffer irreparable damage. 24. The defendants, on the other hand, contend that the defendants have already manufactured 16 machines and have 14 in the assembly line and if the defendants are not allowed to sell the product they will suffer huge damages. Each machine of the defendants value Rs.16.4 lakh. It is further contended that if the defendants are not allowed to sell the machines, the defendants will also have to stop manufacturing. Such stoppage of manufacturing will mean consequent lay-off of labour and suffering for them. The defendants accordingly claim that the balance of convenience lies in favour of the defendants and not in favour of the plaintiffs. 25. Since the plaintiffs have not been able to establish a prima facie case, they cannot plead that there will be irreparable damage if the defendants are not restrained. In fact, if the defendants are restrained they are likely to suffer financial loss. Defendants can be compensated. At the same time, if the defendants are allowed to sell their product and ultimately it is found that the defendants had actually infringed the copyright in the design, the plaintiffs would be entitled to compensation in terms of money. In fact, if the defendants are restrained they are likely to suffer financial loss. Defendants can be compensated. At the same time, if the defendants are allowed to sell their product and ultimately it is found that the defendants had actually infringed the copyright in the design, the plaintiffs would be entitled to compensation in terms of money. In the previous litigation between the defendants and sister concern of the plaintiffs, M/s. Escorts Construction Equipment Ltd., a Division Bench of this Court passed an order vacating an earlier injunction order to direct the alleged infringer to maintain full records of all the machines manufactured and sold. The defendants invite an order in these terms and I feel the proposed arrangement is fair. Accordingly the order of injunction dated 30.3.2006 is vacated but the defendants are directed to maintain true and correct account of manufacture and distribution of Backhoe Loaders and would also keep 10% of the sale proceeds of their Backhoe Loader in a separate account, the details of which will be disclosed to the Court as soon as the account is opened. 26. The application under Order 39 Rules 1 and 2 (IA No. 3741/2006) stands disposed of. Application disposed of.