1. ' SYED HAIDER ALI PIRZADA, J.-This is 'an appeal from the order of learned Single Judge given on 7-3- 1991 dismissing the application for interim injunction filed by the appellants.
2. ' The facts leading to the filing of the above appeal are that the appellants tiled suit for permanent injunction, rendition of accounts, direction to deliver up all their stocks, payments of a sum of Rs, 30 million, costs and such further and/or other relief. The case of the appellants, as set out in the plaint, is that drug or compound known as `ranitidine' which was dicovered and developed by Glaxo and is marked in Pakistan by appellant No,3 in the form of its hydrochloride salt under the brand name Zantac'. Ranitidine/ranitidine hydrochloride is the subject of patent in the name of Glaxo Group Limited (appellant No,1) or its subsidiary, Allen & Hanburys Limited (appellant No,2) in a large number of countries. Pakistan Patent No,126632 relates to process for preparing ranitidine/ranitidine hydrochloride, ranitidine/ranitidine hydrochloride and pharmaceutical compositions containing ranitidine/ranitidine hydrochloride and Pakistan Patent No,128137 relates to a process for the preparation of Form 2 ranitidine hydrochloride, Form 2 ranitidine hydrochloride and pharmaceutical compositions containing Form 2 ranitidine hydrochloride.
3. ' The appellants' claim is that ranitidine hyrochloride of Zantac is the world's largest selling prescription medicine with annual sales of over 1,000 million pounds sterling. It is alleged that the respondents have flagrantly violated appellants' patents mentioned above and are openly selling a drug containing ranitidine as hydrochloride salt which has also serious implications for appellant No,3, the Pakistani subsidiary of Glaxo, which is selling medicine under their permission. Respondent No,1 is importing/manufacturing/selling a drug containing ranitidine as hydrochloride under the name Melfax. (It has of course not attempted to sell the drug under the name Zantac since that would involve an additional illegality on its part as being in violation of the Trade Marks Act, 1940, in addition to the breach of the provisions of the Patents Act, 1911). The case of the appellants, as set out in the plaint, further is that the respondents are not entitled to import or sell ranitidine hydrochloride under the name Melfax or any other name. In these circumstances, the appellants filed the above suit.
4. ' The appellants made an application for temporary injunction in the suit under section 31 of Patents and Designs Act, 1911 (hereinafter referred to as 'the Act') read with Order XXXIX, Rule 2 and section 151, C.P.C. Restraining the respondents from importing, selling, stocking or marketing any drug or medicine containing ranitidine/ranitidine hydrochloride under the trade name Melfax or any other name. The respondents contested the suit and the application. Learned Single Judge refused the injunction on the following grounds:-
(1) The defendants in this case being mere importers or vendors may thus clearly be entitled to detailed particulars of breach.
5. ' The basic violation, if any, is taking place in a foreign country subject to its own Patent Law and it is a serious question to go to trial whether such infringements outside Pakistan would become actionable even though import itself may not be precluded, merely on sale.
(3) Bare import of a patented product does not fall within the mischief of infringement, for if that were not so, there was no reason why the legislature would have omitted to expressly say so.
(4) The validity of patent has been questioned by the defendants.
(5) The plaintiffs have been selling contrary to public interest.
(6) The delay in approaching the Court also disentitles the plaintiffs from grant of interim order.
6. ' So the learned Single Judge by order dated 7-34991 dismissed the application. From this order, the plaintiffs have preferred the above appeal.
7. ' It is the case of the appellants, as set out in the plaint, that the appellants Nos.1 and 2 have patented ranitidine/ranitidine hydrochloride in a large number of countries and in Pakistan Patent Nos. 126632 and 128137 stand duly registered in their favour. Research and development expenditure in the financial year up to 30-6-1989 amounted to 323 million pounds sterling. Patent No,126632 relates to processes for preparing ranitidinc/ranitidine hydrochloride, ranitidine/ranitidine hydrochloride and pharmaceutical compositions containing ranitidine/ranitidine hydrochloride and Patent No,128137 relates to a process for the preparation of Form 2 ranitidine hydrochloride, Form 2 ranitidine hydrochloride and pharmaceutical compositions containing Form 2 ranitidine hydrochloride. The brand name Zantac was given to the medicine by Glaxo and this is the name under which the patent is marketed and sold by Glaxo in many countries around the world.
8. ' Respondent No,1 is importing/manufacturing/selling a drug containing ranitidine as its hydrochloride under the name Melfax. The drug is imported into Karachi and thereafter is sold in various places throughout the country. The case of the respondents, as set out in the written statement, is that medicine `Melfax' is not being manufactured by them. Respondent No,1 has imported the said product from the manufacturers M/s. Apolex Inc. Toronto, Canada. Both the card-board packing in which the drug is sold by the respondents as well as the label on the bottle and the printed literature clearly state and admit that the drug which is being sold contains ranitidine hydrochloride.
9. ' The term "patent" is defined in section 2(ii) of the Act. It means a patent granted under the provisions of this Act. The subject form of Patent is in the Third Schedule to the Patents and Designs Rules, 1933. The grant is of the sole privilege of the patentee. The patentee have the exclusive privilege of making, selling and using the invention throughout Pakistan. Section 12(1) of the Act envisages that a patent sealed with the seal of the Patent office subject to the other provisions of this Act, confer on the patentee the excluvie privilege of making, selling and using the invention throughout Pakistan and of authorizing others so to do.
10. ' The word 'use' in section 12 of the Act has been interpreted in a number of decisions. In sequence of dates, they were United Telephone Co. v. Sharpies, decided by Kay, J. In the year 1885 and reported in (1885) 2 RPC 28; British Motor Syndicate v. John Taylor & Sons Ltd. Decided in 1900 and reported in (1900) 17 RPC 723; British Thomson Houston Co. Ltd. v. Charlesworth Peebles & Com, a case in the Court of Session, the Inner House, decided in 1922 reported in (1922) 39 RPC 399; Pfizer v.
11. Ministry of Health 1965 AC 512 of Moston-Norwish Products Inc. v. Interence Ltd. Decided in 1976 and reported in (1976) Fleet Street Reports (FSR) 513; and finally Whitford J.'s decision in Hogfman-Law Roche v. Harris Pharmaceuticals (1977) FSR 200.
12. It seems to us that Mr. Khalid Anwar is correct in submitting that unlicensed possession by a merchant in Pakistan of patented goods for the purposes of supplying to customers wherever they may be or selling to customers constitutes infringement. In United Telephone Company v. Sharpies, the defendant had imported into United Kingdom certain telephone equipment which was within the claims of a patent owned by the plaintiff company. Kay, J. Came to the conclusion, upon the evidence, that the defendant must be taken to have imported that equipment into the country with a view to selling it in the export market. He said this at page 31 of the report as under:-- "It is admitted by Council for the Defendant that if a man buys an instrument which he knows would, if made, sold, or used in this country, be an infringement of a patent in this country, if he buys it abroad, imports it into this country, has it in his possession, and sells it, although to a foreign customer, that would be a user which would be an infringement of the patent. I confess, as at present advised, I should have very little hesitation in saying that that would be so; and in this case the balance of the evidence, in my opinion, is in favour of the theory of the plaintiffs, that that is the thing which was actually done in this case. I infer that it was . Done, and therefore I hold, on that ground, that there was clearly an infringement of these patents."
13. ' In the British Motor Syndicate, Ltd. And others v. John Taylor & Sons, Ltd. (1900) 17 RPC 723, Lord Chief Justice Alverstone said on page 730, line 33 as under:-- "I think that once given that the purchase and possession with a view to sale are sufficient to constitute infringement amounting to user of the invention within the meaning of the Patent, as I think they do, then the defendants have not put themselves in a position to raise the other question with regard to quantum."
14. The learned Judge then held that possession with a view to sale was an infringement. The matter was dealt with by Vaughan Williams L.J. On page 732. Starting at line 4, he said:-- "Now I want to say, speaking for myself, that I am not satisfied that mere possession of every patented article does constitute a user within the meaning of the words used in the Letters Patent.
15. That must depend upon the nature of the article. It may amount to a user and it may not amount to a user; but here what is put forward is that there was not a mere user, but that there was acquisition and possession of these articles for trade purposes with the intention of using them in trade. In my judgment such an acquisition and such a possession of an article, whatever its nature may be, is a user."
16. ' In the Pfizer case, Lord Reid (at page 536 at C) and Lord Upjohn (at page 553 at D, page 556 at A, page 557 at A and page 557 at C) both made observations which support the view that possession of goods in this country (U.K.) with a view to their being sold amounts to an infringement. It is true that in that case, the proposed sale or contemplated sale was one within United Kingdom; but the language in which their Lordships expressed themselves was not confined to sales within the United Kingdom, and it would seem to us that it was possession with a view to sale or, as Lord Upjohn called, "possession in the way of trade" that they' particularly had in mind, Lord Wilberforce at page very 571 put the case ve succinct in these terms, just above the letter G: "so importing and selling is 'using' the invention. At page 572 he said this with regard to British Motor Syndicate v.
17. Taylor, after referring to Minter v. Williams and No Fume Limited v. Frank Pitch & Co. Ltd.:-- 'These are perplexing distinctions, but perhaps it is British Motor Syndicate Ltd. v. Taylor & Son- which comes nearest to establishing a general principle. There the defendant had purchased infringing articles in this country and transmitted them for sale abroad. It was held by both Stirling, J. And the Court of Appeal that he had infringed the patent; by Stirling, J. On the ground that he had transported the articles with a view to sale, and by Lord Alverstone C.J. On account of purchase and possession with a view to sale. Vaughan Williams L.J. Put his decision explicitly on the ground that acquisition and possession for trade purposes with the intention of using the articles in trade was a user."
18. ' It seems to us that in the light of these authorities, Whitford, J. Was fully justified in saying, as he did in the course of his judgment in the Hoffmann-La Roche case at page 207:-- "I entirely agree with the views which have been expressed that possession with the intention of using the articles for trade purposes and for the securing of a profit amounts to an infringement, whether the dealing which you are proposing to carry on is a dealing with a customer in this country or with an export customer?"
19. ' The contention of Mr. Ataur Rehman in the present case that there can be no infringement where the importer has imported the goods from abroad, so far as we could make out, is not supported by any authority.
20. ' The question is whether the Pakistan patents have been infringed by the importation and sale in this country of the drug Melfax'. "Melfax" tablets containing ranitidine hydrochloride made and/or sold by the respondents were made by that very process which is protected by Pakistan Patent No,126632 with particular reference to examples 15 and 24 and claim 1-A and 1-B therein and the very process which is protected by Pakistan Patent No, 128137 with particular reference to claim therein.
21. ' In this situation, it is clear that if the `Melfax' were to be manufactured in this country, it would be an infringement of the patent. But it was not made in this country. It was made in Canada and then brought over and sold here. Does this infringe the patents?
22. ' The law on this subject was stated by Buckley, J. In Saccharin Corporation, Ltd. v. Anglo- Continental Chemical Works Ltd. And another (1900) 17 RPC 307. In this case, the plaintiff had a patent for a process making a substance called ortho toluene sulpho chloride. It was useful in making saccharin. The defendants overseas used the self same process of ortho toluene sulpho chloride, they used it to make saccharin and then imported the resulting saccharin into this country. Buckley, J. Held that this importation was itself an infringement of the patent. He said at page 319, line 21, as follows:-- "If the patented process were the last stage in the production of the article sold, the importation and sale of the product would, in my opinion, plainly be an infringement. Does it make it any-the- less an infringement that the article produced and sold is 'manufactured by the use of the patented process which is subjected to certain other processes? In my opinion it does not. By the sale of saccharin, in the course of the production of which the patented process is used, the patentee is deprived of some part of the whole profit and advantage of the invention, and the importer is indirectly making use of the invention."
23. ' That was followed by Cozens-Hardy, J. In Saccharin Corporation, Ltd. v. Reitmeyer & Co. ((1900) 2 Ch. 659=17 RPC 606). This view of the law was accepted by Tomlin, J. In Wilderman v. Berk & Company Ltd. (1925) 42 RPC 79). He said "in my judgment, each case must be determined on its own merits by reference to the nature of the invention, and the extent to which its employment played a part in the production of the article, the importation of which is complained or.
24. We are of the humble view that prima facie, these cases represent the law in this country. If a person, in making a product overseas uses processes which would be infringing processes here, those processes being a principal part of the manufacture and then imports the article into this country, he is guilty of an infringement. The reason is because, by using those processes overseas and bringing the product here to sell, he deprives the Pakistani Patentee of the benefit of the invention.
25. ' The evidence here shows that in making 'Melfax' in Canada, the manufacturers M/s. Apotex Inc.
26. Toronto use ranitidine hydrochloride which is protected here by Pakistan patent. Its importation and sale here is prima facie an infringement.
27. On evidence, as it stands, there is ground for saying that Nelfax' is medically equivalent to Zantac'.
28. As soon as it is put into the human body, it does have the same effect as Zantac'. In these circumstances, we think there is a prima facie case for saying that there was an infringement. So we would hold, departing in this respect from the learned Judge, that there is prima facie evidence of infringement of these Pakistan patents by the importation and sale in this country of the medicine Nelfax'.
29. ' It appears from the order of the learned Single Judge that substantially the same submissions were made to him by Mr. Ataur Rehman as were addressed to us, namely, that the patents are clearly invalid. The learned Single Judge left the question to be dealt at the trial. We are prima facie of the view that the patents are valid because Patent No,12663 has been on the register for about 13 years without any challenge. We have come to the conclusion that while there is much to be said for Mr. Ataur Rehman's submissions as to their invalidity, more especially, because they did not involve any inventive step on or before the priority date of their claim which appears to be based on facts which are Common cause, they are insufficient to warrant the conclusion that Glaxo could not obtain final relief at the trial.
30. ' The next question is whether the appellants have made out a prima facie case for the grant of a temporary injunction. Counsel for the appellants has strongly relied on a decision of House of Lords in the case of American Cynamid Company ((1975) 1 AER 504).
31. The legal principles to be applied in a case such as this are reasonably clear. In order to obtain a temporary injunction, the applicant must show (i) a strong prima facie case for the validity of its patent; (ii) an infringement or threatened infringement of the patent by the respondents; and (iii) the absence of adequate remedy e.g. By way of damages. In the case of American Cynamid Company, the House of Lords held that there was no rule in England whereby an applicant for an interlocutory injunction against infringement of a patent must establish a "probability" as to validity, or a "prima facie case" or a "strong prima facie case" and that all that is required is that the Court "should be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried." (Per Lord Diplock at page 510 d).
32. ' Rule of "old practice" has now been reviewed and expressly disapproved by the House of Lords in the American Cynamid case (supra). That being so, we do not think that this Court should consider itself bound by the decision of equal jurisdiction which is out of line with the general current authority in our Courts relating to the principles governing the grant or refusal of temporary injunctions.
33. ' On the other hand, we consider that the rule of practice which has now been laid down by the House of Lords in the American Cynamid case is not in accordance with our law in Pakistan and should riot be followed. We should perhaps add at this stage that the decision in that case has been subjected to trenchant criticism by the Court of Appeal in England, most notably by Lord Denning, M.R. In Fellows and another v. Fisher (1975) 2 AER 829 at p.836) on the ground that it is improbable to reconcile it with earlier decision of the House of Lords in Stratford v. Lindley (1964) 1 AER 102). In our view the principles stated by the Court of Appeal in England in two earlier cases of Hubbard and another v. Vosper and another (1972)1 AER 1023) and Evans Marshall & Co. Ltd. v.
34. Vertola SA. (1973) 1 AER 992) accord more closely with the current of authority in Pakistan on this subject than does the American Cynamid case, supra. In Hubbard's case, supra at page 1029, Lord Denning, M.R. Said this:-- "In considering whether to grant an interlocutory injunction, the right course for a Judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint on the defendant but leave him free to go ahead. For instance, in Fraser v. Evans, although the plaintiff owned the copyright, we did not grant an injunction, because the defendant might have a defence of fair dealing. The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules."
35. ' So too, Megaw, L.J. Said at pages 1030 and 1031 as' under:-- ' It must be looked at on the whole of the case; the existence of the right and of any defences that are asserted in relation to the admitted existence of that right. In addition, one has to take into account the evidence of the alleged breach, the fact relating to the alleged breach, and even then there is no firm and invariable criterion which can be laid own on the basis of the prospects of success in the action because frequently one has to consider also the balance of convenience, as well as the status quo. One can readily imagine a case in which the plaintiff appears to have a 75 per cent. Chance of establishing his claim, but in which the damage to the defendant from the granting of the interlocutory injunction, if the 25 per cent. Defence proved to be right would be so great compared with the triviality of the damage to the plaintiff if he is refused the injunction, that an interlocutory injunction should be refused. To my mind, it is impossible and unworkable to lay down different standards in relation to different issues which fall to be considered in an application for an interlocutory injunction. Each case must be decided on a basis of fairness, justice and common sense in relation to the whole of the issues of fact and law which are relevant to the particular case."
36. ' That general approach was approved in the Evan Marshall case, supra, in which the Court of Appeal, having found that the Court below had erred in holding that there was some strict rule of law which precluded the grant of an injunction unless there was sufficient prospect of a permanent injunction being obtained at the trial came to its own conclusions as to how the Court's discretion should be exercised.
37. ' The second ground upon which, in our view the approach of the House of Lords in the American Cynamid case is not in accordance with our law, is the alleged "governing principle" that the Court should just consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated in damages, and that it is only where there is doubt as to the respective remedies in damages available to either party or to both that the question of balance arises (See pages 510/511).
38. ' Terrell on the Law of Patents, Twelfth Edition, in para. 830 has observed as follows:-- "830. Prima facie evidence of validity: ' The plaintiff must first establish such facts as will satisfy the Court that there are strong prima facie reasons for acting on the supposition that the patent is valid. The most cogent evidence for this purpose is either that there has been a previous trial in which the patent has been held to be valid, or that the patentee has worked and enjoyed the patent for many years without dispute; or it may be that as between the parties the plaintiff is relieved from the onus of establishing validity, as where the defendant has admitted it or is so placed in his relationship to the plaintiff as to be estopped from denying it."
39. From the material on record, it appears that the patents in question are more than six years old and under section 12 of the Act, the patentee has exclusive right of making, selling and using the inventions throughout Pakistan. We have already held that prima facie the patents are not invalid.
40. Prima facie the appellants have established prima facie case.
41. ' The appellants have an arguable case on the infringement and validity and the only issue was whether the balance of convenience favours the grant of the interlocutory injunction.
42. ' As to the balance of convenience, firstly we are first required to consider whether an award in damages would be an adequate compensation for the plaintiffs/appellants if no interim injunction be granted but the plaintiffs/appellants succeeded at the trial in obtaining a permanent injunction.
43. If damage is in fact incurred a monetary award would be an inadequate compensation because of the impossibility of quantifying the damage in any realistic way. On the contrary hypothesis that the appellants obtain interim injunction but fail at the trial we must consider whether damage under the appellants' undertaking would be an adequate remedy for the respondents. We have no doubt that the damages would be very large indeed but we are of the view that the ability of the appellants to answer these damages is not for one moment in dispute.
44. ' Secondly, the appellants have laid out substantial capital expenditure in establishing the manufacture of this product. The patent No,126632 is due to expire on 2-8-1993. The other patent has a longer period to run for at least four years. The respondents, on the other hand, do not manufacture allegedly infringing product. They buy it as we have said from Canadian manufacturer and put it on the market in this country presumably with comparatively little capital expenditure although we have no direct information about that.
45. ' So on the one hand, we have appellants already engaged in manufacture in Pakistan, having invested substantial funds who have now reached a point when the market is turning in their favour for the time being. On the other hand, we have respondents who, when the suit was instituted in this Court, appeared to have been just launching upon trade in Pakistan in the allegedly infringing product which they do not manufacture themselves. We, therefore, assume that it is right to view their business as being in its extreme infancy.
46. ' We are of the humble view that if the appellants are right about infringement, they are entitled to be protected by their patents against competition by the respondents until those patents expire.
47. They have established and if the respondents are allowed to compete with the appellants, not only will the appellants' present efforts be hindered, but also at the expiry of their patents, when other competitors may be on the market as well as the respondents, they will find that instead of being the well known and established suppliers in this country, they will have to compete with the respondents, who may by then have built a significant bridgehead in the market giving them an advantage over other suppliers and the appellants will fmd themselves confronted by stronger competition than would otherwise be the case.
48. ' Mr. Ataur Rehman has submitted that there is a good and expanding market which cannot be fully supplied by the appellants' own production and the produce of the appellants is selling at a higher price whereas the respondents' price is lower and the respondents' competition would not much harm the appellants. We cannot accept this submission. The existence of the market is the very circumstance which will help the appellants to strengthen their position and perhaps to expand their production. If they are deprived of this opportunity, it would, as it seems to us, be well-nigh impossible to assess the continuing damage which they may suffer by loss of competitive strength when the patents expire. On the other hand, all that an injunction will occasion for the respondents is a delay for a time in embarking upon their instant new business in a market where it would seem that they have not had to make any substantial capital investment.
49. ' It is quite true that it may not be easy to estimate the amount of business which the respondents would have obtained but for an injunction if it is granted, if they succeed at the trial of the action.
50. But we think, it would be much easier to arrive at a measure of that damage than it would be to arrive at a measure. Of the continuing damage which would be suffered by the appellants in the way we have described.
51. Moreover, that damage, so far as it relates to the possible loss of business after the expiry of their patents, would seem to be damage which could not be recovered under the heading of infringement; so that the appellants might be without relief in that respect. In any event, it seems to us that the amount of damage that the respondents would be likely to suffer as a result of the granting of an injunction, compared with the amount of damage that the appellants would be likely to ssuffer as a result of the refusal of an injunction, would be much less in the respondents' case than in the case of the appellants.
52. ' The learned Single Judge declined the application on the ground that it is found that a monopoly is being exploited or such privilege, as arises upon the sealing of a patent, is being misused in disregard of public interest such relief can be refused on equitable considerations. Mr. Ataur Rehman has fairly conceded that pricing does not directly enter a dispute involving infringement.
53. There is no controversy on the point that respondents' prod Welfare is registered with the Director General, Health, Government of Pakistan. However, the question whether the respondents have infringed the appellants' patent is altogether a distinct question and the same has to be determined in accordance with the law relating to patents. Consequently, registration of respondents' product with the Director General cannot be successfully pleaded as a defence against the alleged infringement.
54. ' The last question for our consideration is delay which has caused us considerable anxiety. In the instant case, appellants issued notice to the respondents on 6-3-1989 complaining of infringement and required an explanation within a fortnight. None was rendered. A reminder was addressed on 4-4-1989 and a further week's time was given. Respondents sent a reply though evasively on 6-4- 1989 and, thereafter, the suit was presented on 29-5-1990. Delay is explained on the basis of a cash memo. Dated 19-2-1990. The delay is about one year two months and twenty-three days.
55. ' It may be mentioned that according to the respondents, the delay in the instant case is about one year, two months and twenty-three days. According to the appellants, they could not be expected to take action till they came to know on 19-2-1990 that the respondents had placed `Melfax' in the market for sale. Mr. Khalid Anwar has strongly urged that mere delay is no bar to relief by way of interlocutory injunction.
56. ' This question was considered in a case Mian Miraj-ud-Din versus The Senior Superintendent of Police, Lahore District, Lahore, and others (PLD 1970 Lahore 569) wherein the significance of the doctrine of laches was explained to mean "such negligence or omission to assert right, as, taken in conjunction with the great lapse of time and other circumstances, causes prejudice to an adverse party. If a person seeking a remedy has not committed such a delay as would cause prejudice to the other side or would amount to waiver or acquiescence on the part of the person seeking the remedy, technical plea of laches, by itself, would not be sufficient to bar the remedy". The dictum laid down in the above case was approved in a case reported in 1984 SCMR 845.
57. ' In AEG Telefunken Pakistan Ltd. v. Electric Concern Corporation (1985 CLC 155), Mr. Saeeduzzaman Siddiqui, J. Held at page 158 as under:-- "Therefore, prima facie, it appears that before the grant of patent in their favour the plaintiff not only advertised but also sold their product in open market. Apart from it, according to plaintiff's own case they came to know about the sale of Miniature Circuit Braker with three power plug by the defendant in or about July, 1980 while the present suit was filed in this Court on 21-11-1983. No doubt an attempt was made by the learned counsel for the plaintiff to explain this delay but in view of the fact that for all these years the defendant continued to import and sell the product in open market unabated, this fact alone is sufficient to disentitle the plaintiff to claim relief by way of temporary injunction."
58. ' The above decision is not applicable to the facts of the instant case. In that case, it was established that Miniature Circuit Brakers were available in the market, Harman, L.J. In the case of Cavendish House (Cheltenham) Ltd. v. Cavendish-Woodhouse Ltd. (1970 R.P.C. 234) observed at page 236 as under:-- "It is said (and has often been said before) that vigilantibus non dormientibus suppetit lex if you want the law to help you must keep awake, and more especially in respect of interlocutory relief, which you obtain upon less than direct proof of the facts and on (as it is said) the balance of convenience pending the trial of the action. Many Judges sitting in the Chancery Division, and we also indeed, have emphasised that those who wish interlocutory help must come quickly to the Court."
59. ' From the facts and circumstances of this case, it cannot be said that the delay was not such as to disentitle the plaintiff to relief.
60. It has come on record that the respondents imported `Melfwe tabletes from Canada in 1988.
61. Thereafter a further consignment was imported in 1990. It has also come on record that the respondents have not established a factory or invested huge amount in the manufacture of the product in question. There is no averment in the pleadings to the effect that the respondents were prejudiced in any manner by the alleged inaction of the appellants over a period of one year and two months.
62. ' For the aforesaid reasons, this appeal succeeds and we grant interim injunction as prayed till the decision of the suit.