ORDER :- This is another suit filed by same plaintiff (against different set of defendants), transferred to this Court from Court of District Judge, Udham Singh Nagar, under Section 104 of Patents Act, 1970, after the counterclaim along revocation was filed by the defendants in the suit. (Earlier Suit No. 1 of 2008, filed by the plaintiff was transferred to this Court, against Lamda Eastern Telecommunication Ltd. with different story of infringement of same products. Reference-Acme Tele Power Ltd. v. Lamda Eastern Telecommunication Ltd. 2008 (1) Uttaranchal Decisions 467.) 2. Heard learned counsel for the parties at length on the application (6-C) moved under Order XXXIIX, Rules 1 and 2 read with Section 151 of Code of Civil Procedure, 1908, by plaintiff, and objections/reply 21-C and 22-C, filed on behalf of defendants No. 1 and 2 thereto. 3. Brief facts of the case, as alleged in the plaint are that plaintiff-Acme Tele Power Limited has its registered office in Gurgaon and its factory is located in SIDCUL, Pantnagar (Uttarakhand). It is pleaded that plaintiff manufactures products known as "Green Shelter" and "Compact Power Interface Unit" at its factory within the territory of State of Uttarakhand. The two products are purchased by and used in Telecom industry for efficient management of the temperature for telecom equipment at telecom towers. Defendants No. 1 is a company running business of manufacturing and supplying Sintex BTS Shelters (using therein Integrated Power Unit), and defendant No. 2 is a partnership firm manufacturing and selling Integrated Power Unit, allegedly by infringing the plaintiff's intellectual property rights. It is further pleaded in the plaint that plaintiff is committed to constant innovation and has spent huge capital and labour in inventing its products. The two products of the plaintiff namely Green Shelters and Compact Power Interface Units were the result of extensive research and development, as such, the application was moved by the plaintiff for getting registered the patent. Consequently, the authority concerned granted registration of patent No. 197086 on 11-8-2006. for Power Interface Unit and No. 197108 on 8-9-2006. for Cuboidal shaped green shelter. By virtue of ownership of the above patents, plaintiff has right to prevent all other persons from making, using, selling, offering to sell or importing the two products. Consequently, the authority concerned granted registration of patent No. 197086 on 11-8-2006. for Power Interface Unit and No. 197108 on 8-9-2006. for Cuboidal shaped green shelter. By virtue of ownership of the above patents, plaintiff has right to prevent all other persons from making, using, selling, offering to sell or importing the two products. It is alleged that the defendants are infringing the valuable intellectual property rights of the plaintiff by manufacturing, using copy righted works of plaintiff, and selling the same in the market. With these pleadings, plaintiff instituted suit for permanent injunction. And this application for temporary injunction is filed in the suit. 4. Defendants filed their separate written statements and counter claims. In the written statement of defendant No. 1, territorial jurisdiction of the Court in Uttarakhand is challenged with the allegation that no part of cause of action has arisen within the territory of Udham Singh Nagar (Uttarakhand). It is also stated in the written statement of answering defendant that suit is bad for misjoinder of causes of action. It is further pleaded that, the present suit is filed after the plaintiff failed to get relief in suit No. 598 of 2005, instituted before Delhi High Court and withdrew it. It is stated by defendant No. 1 that he is manufacturing. Base Trans. Station Shelter (hereinafter referred as BTS Shelter) on the basis of the requirements of the specification demanded by the customers. It is specifically denied that patented products-namely 'Cuboidal Shaped Green Shelter' (in short Green Shelter) and 'Compact Power Interfeace Unit' (in short PIU) are inventions of plaintiff. It is stated that the products with different names are used in telecommunication Industry for a long time. Nine distinguishing features between the products produced by plaintiff and the one by defendant No. 1 are enumerated in para 9 of the written statement. The defendant No. 1 has pleaded that the plaintiffs patented product "Green Shelter" is nothing more than workshop modification and the patent is liable to be revoked. Objections filed under Section 25(2) of Patents Act, 1970, by defendant No. 1 against patent No. 197108 and 197086, are pending for decision of the authorities concerned. The defendant No. 1 has pleaded that the plaintiffs patented product "Green Shelter" is nothing more than workshop modification and the patent is liable to be revoked. Objections filed under Section 25(2) of Patents Act, 1970, by defendant No. 1 against patent No. 197108 and 197086, are pending for decision of the authorities concerned. Denying that plaintiff's right is infringed it is also pleaded by the defendant No. 1 that the answering defendant would suffer irreparable loss if the injunction is granted, in favour of the plaintiff while he (plaintiff) can be compensated in terms of money. 5. In his written statement defendant No. 2 has also raised objection as to territorial jurisdiction of the Court. It is pleaded by said defendant that no cause of action has arisen to the plaintiff against the answering defendant. It is further pleaded that the plaintiff has not come to the Court with clean hands and as such not entitled to the relief claimed. It is stated in the written statement that there is material concealment of fact that Sintex has challenged the patents of plaintiff before the authorities concerned and the said matter is pending for disposal. Defendant No. 2 has further pleaded that products, which were got patented by the plaintiff, are not inventions. Phase Change Material (PCM), Power Interface Unit (PIU) and Green Shelter, are not inventions. PCM are products, known to the world for several years and are being used for maintenance of temperature with or without use of air conditioners and can be considered environment friendly. In fact petitioner was earlier purchasing PCM products from Australian manufacturer TEAP Energy Ltd. Similarly, PIU is a product where various electronic and electrical products Like, Servo Stabilizer, Isolation Transformer, Alarm Panel etc. are to be in a Panel Board. Such devices are also available in the market. Some assembles of PIU are known as Integrated Power Unit (IPU), Power Management Systems (PMS) etc. As such, the defendants are not barred from manufacturing and selling the same. Denying the copy rights of the designs claimed by the plaintiff, it is pleaded that the plaintiff's design is nothing but workshop modification of the existing products. Denying that defendant No. 2 had any access to website or has downloaded any information at Pantnagar, it is stated that this Court has no jurisdiction to try the suit. Denying the copy rights of the designs claimed by the plaintiff, it is pleaded that the plaintiff's design is nothing but workshop modification of the existing products. Denying that defendant No. 2 had any access to website or has downloaded any information at Pantnagar, it is stated that this Court has no jurisdiction to try the suit. Challenging the experts report, relied by the plaintiff, it is pleaded that no intellectual property right of the plaintiff is being violated by the defendants. It is further stated that if the plaintiff is granted injunction, it would cause enormous loss to the defendants, while plaintiff can be compensated in terms of money. It is further pleaded that since patents in question are challenged before the authority and the counterclaim is pending in this suit, as such no injunction can be granted, and the suit is liable to be dismissed. 6. For disposal of application for temporary injunction, this Court has to see whether there is :- 1. Prima facie case in favour of the plaintiff. 2. Balance of convenience in his favour. 3. Irreparable loss to him. Apart from this, it has also to be seen that whether the plaintiff has come with clean hands and has he not suppressed the material facts from the Court for obtaining the temporary injunction. 7. It is not disputed that the two products namely 'Power Interface Unit' (PIU) and 'Cuboidal Shaped Green Shelter' (in short Green Shelter), manufactured by plaintiff are registered with patented authorities under Patents Act, 1970, at serial No. 197086 and 197108, on 11-8-2006, and 8-9-2006, respectively. It is pertinent to mention here that application was moved by the plaintiff before patent authorities in the year 2004, for registration of its products. Though no opposition was filed by anyone under subsection (1) of Section 9 of Patents Act, 1970, but from the papers on record, it is evident that opposition before patent authority was filed on behalf of defendant No. 1 under Section 25(2) of said Act. Shri V.K. Kohli, Advocate on behalf of defendant No. 1, argued that BTS shelter manufactured by defendant No. 1. used to be purchased by the plaintiff himself. Shri V.K. Kohli, Advocate on behalf of defendant No. 1, argued that BTS shelter manufactured by defendant No. 1. used to be purchased by the plaintiff himself. In this connection, he referred to paper No. C 94/2, C94/5, C 94/6 and C 94/8, which are papers of the year 2003 and 2004 relating to the purchase of BT shelter from Sintex Industries Limited (defendant No. 1) by the ACME Tele Power Limited.In my opinion prima facie this shows that the defendants of this suit were already in business of manufacturing the products in question even before the plaintiff got improved version of items, manufactured by him, patented. (In short No. 1 of 2008, where the temporary injunction was granted to the plaintiff against the defendants of said case, the defendants started manufacturing the patented products in the year 2006, only after the employee of the plaintiff left him and joined the defendants of said case. Ref. ACME Tele Power Limited v. Lamda Eastern Telecommunication Ltd. 2008 (1) Uttaranchal Decisional 467). In the above circumstances, it cannot be said that the plaintiff has a prima facie case as against the present defendants. 8. On behalf of learned counsel for the parties to this suit rival contentions were made as to whether the control module in Compact Power Interface Unit of the plaintiff, and the Cuboidal Shaped Green Shelter, are inventions or not. On behalf of the plaintiff, relevant paras of Smithkline Beecham case (2006) RPC 10, decided by House of Lords, General Tire and Rubber Co. Ltd. v. Firestone Tyre and Rubber (1971) FSR 417. Electro Medical Systems, S.A. v. Cooper Life Sciences 34 F.3d 1048, In Re-Dembiczak 175 F.3d 994, and Sabaf SpA v. MSI Furniture Centres Ltd. (2005) RPC 10 decided by House of Lords, were read out. Similarly, on behalf of defendants, relevant paras of M/s. Standipack Pvt. Ltd. v. M/s. Oswal Trading Co. Ltd., AIR 2000 Delhi 23, Hindustan Lever Ltd. v. Godrej Soaps Ltd. AIR 1996 Calcutta 367, Niki Tasha India Pvt. Ltd. v. Faridabad Gas Gadgets Pvt. Ltd. AIR 1985 Delhi 336, V. Manicka Thevar v. M/s. Star Plough Works, AIR 1965 Madras 327, were read out in support of their contentions that the products in question, as claimed by the plaintiff are not inventions. For brevity the paragraphs read out are not being quoted in this order. For brevity the paragraphs read out are not being quoted in this order. Having considered the principle of law laid down in the aforesaid cases, this Court at this stage, is not expressing any final opinion as to whether the products got patented by the plaintiff are inventions or not, as the same is matter for the final decision of this case but this much is clear that in the facts and circumstances of the case, at this stage, it cannot be said that prima facie case has been made out as against the present defendants. 9. Even otherwise, assuming for a moment the plaintiff has shown a prima facie case, there appears to be a suppression of material fact on the part of plaintiff to the extent that it concealed from the Court at the time of instituting the suit, before the trial Court that the BTS shelters manufactured by defendant No. 1 used to be purchased by the plaintiff before getting Green Shelter patented. Not only this, there is yet another fact on the record, which shows that plaintiff has not come with the clean hands before the Court, as after hearing the parties, it is found that the plaintiff has not only concealed above fact, but also concealed another fact that it Instituted Original Suit No. 598 of 2005. before High Court of Delhi against the defendant No. 1 and after it failed to obtain the injunction, the suit was withdrawn from there on 15-11-2007, where after this suit was filed in District Udham Singh Nagar of Uttarakhand. (In suit No. 1 of 2008, which was against different set of defendants concealment of institution of suit at Delhi was not treated to be material for the reason that the suit at Delhi was not against said defendants). As such, the plaintiff is not entitled to the discretionary relief of temporary injunction for the reason he has not come with clean hands and suppressed the material fact from the Court. On behalf of the plaintiff, attention of this court is drawn to the copy of plaint of suit No. 598 of 2005, instituted before Delhi High Court and it is submitted that said suit was instituted prior to the products in question were got patented and the relief in said suit was for recovery of Rs. On behalf of the plaintiff, attention of this court is drawn to the copy of plaint of suit No. 598 of 2005, instituted before Delhi High Court and it is submitted that said suit was instituted prior to the products in question were got patented and the relief in said suit was for recovery of Rs. 2,42,79,908/-, and also for temporary injunction against the defendants restraining them to sell and manufacture TEAP Brand technology by manufacturing and selling TEAP Phase Change Material (PCM). Undoubtedly, relief claimed in the suit at Delhi and the one filed before the Court at Udham Singh Nagar, are not identical but the products in respect of which there was dispute between the parties, had the similar functions to the one which is in dispute before this Court. My attention was drawn on behalf of the plaintiff to the case of Arunima Baruah v. Union of India (2007) 6 SCC 120 : (2007 AIR SCW 4609) and it is submitted that suppression of fact on the basis of which injunction can be refused must be a material fact. I have gone through said case law. In said case, the Apex Court itself has held that what would be a material fact, suppression whereof would disentitle the plaintiff to obtain discretionary relief, would depend upon the facts and circumstances of each case. In the opinion of this Court, concealment together of the aforesaid two facts prima facie disentitle the plaintiff to temporary injunction. However, this Court is not expressing final opinion on the point, as the same can be seen at the time of final disposal of the suit. 10. Learned counsel for the defendants argued that the Court at Udham Singh Nagar, has no territorial jurisdiction to entertain the suit. In this connection, it is further submitted on their behalf that no part of cause of action as against defendants have arisen in District Udham Singh Nagar. However, prima facie I am unable to accept the submission advanced in this regard on behalf of the defendants for the reason that learned counsel for the plaintiff has sufficiently shown that the industrial unit where the two products are manufactured by the plaintiff, is situated in SIDCUL, Pant Nagar within the limits of District Udham Singh Nagar, Uttarakhand, and its production and sale is affected if the defendants are permitted to produce and sell their products. In view of Section 20(c) of Code of Civil Procedure, 1908, a suit can be instituted at a place where even part of cause of action has arisen to the plaintiff. Therefore, prima facie it cannot be said that the Courts at Udham Singh Nagar or this Court has no territorial jurisdiction in the matter. However, the parties may argue on this point further at the time of final disposal of the suit. 11. On behalf of the defendants, it is also contended that the suit suffers from misjoinder of causes of action and misjoinder of defendants and single suit cannot be maintained in respect of two different products, which are manufactured by two different persons. In reply to this, Shri R. Parthasarathy, learned counsel for the plaintiff drew attention of this Court to the provision contained in Order 1, Rule 3 of Code of Civil Procedure, 1908, which provides that all persons may be joined in one suit as defendants where any right to relief in respect of, or arising out of the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative. Learned counsel for the plaintiff further submitted that Integrated Power Unit (IPU) manufactured by defendant No. 2 is installed by defendant No. 1 in 'Shelter' produced and manufactured by it. As such, cause of actions against the two defendants are not severable. Prima facie, this Court accepts this submission and subject to the final decision of this Court on said point, the application of temporary injunction cannot be thrown away by holding at this stage that the suit suffers from misjoinder of causes of action and misjoinder of defendants. 12. As to the allegations of infringement, on behalf of defendant No. 1, it is pointed out that BTS shelter is not substantially identical to the Green Shelter, manufactured by the plaintiff. In this connection, broadly speaking, he pointed out four distinguishing features in the shelter, manufactured by defendant No. 1 :- 1) Plaintiffs shelter is cuboidal shaped while that of the defendants shelter has a slant roof structure. 2) Defendant No. 1 uses Sheet Moulded Plastic Cover (SMC) in its product, while plaintiff uses Fiberglass Reinforced Plastic (FRP) as insulators. In this connection, broadly speaking, he pointed out four distinguishing features in the shelter, manufactured by defendant No. 1 :- 1) Plaintiffs shelter is cuboidal shaped while that of the defendants shelter has a slant roof structure. 2) Defendant No. 1 uses Sheet Moulded Plastic Cover (SMC) in its product, while plaintiff uses Fiberglass Reinforced Plastic (FRP) as insulators. 3) Plaintiff does not use thermocol in its green shelter, while the defendant No. 1 uses it as and when demanded by the customers in the BTS shelters for the purposes of insulation. 4) In the green shelter, manufactured by the plaintiff, wooden flooring is used while the defendant No. 1 does not use the same unless specifically demanded by a particular customer. Learned counsel for the defendant No. 1 argued that the other items used in the products manufactured by defendant No. 1 for e.g. Chill Pack, Phase Change Material (PCM) bottle, Air-Conditioners, etc. are available in the market. 13. Similarly, on behalf of defendant No. 2, it is argued that there is nothing to be patented in the Power Interface Unit, as the technology is already available in the market, used for maintaining the electric supply at the time of load shedding. In this connection, it is further submitted that various companies/firms, including defendant No. 2 were already producing similar items before the plaintiff got his Compact PIU patented. It is argued that except for the control module, which is at the most an improvement in the already existing products in the market, there is no distinguishing feature in the plaintiff's patented products. 14. For the reasons, as discussed above, this Court is of the view that since prima facie it appears that the defendants were already producing their products before the plaintiff got his products patented, and keeping in mind that plaintiff, in this suit has suppressed the material facts from the Court, this Court is not inclined to grant the temporary injunction to the plaintiff. Therefore, without expressing any opinion as the final merits of the suit, the application for temporary injunction is rejected. List this suit on 8-7-2008, for framing of issues. Order accordingly.