Hon?ble Shri Z. S. Negi, Chairman:
The appellant has preferred an appeal against the order dated 27.8.2007 passed by the Deputy Registrar of Trade Marks whereby he allowed the opposition No. MAS- 121100 and refused the registration of trade mark under application No. 931068B in class 5.
2. The appellant has filed the above appeal 54 days after the expiry of period of limitation specified under sub-section (1) of section 91 of the Trade Marks Act, 1999 ( hereinafter referred to as the Act) and hence the instant application for condonation of delay in filing the appeal. It is the case of the appellant that the impugned order was communicated to its Attorneys on 31.8.2007 and the appeal was required to be filed on or before 30.11.2007. The delay occasioned on account of shifting of appellant?s legal department from one floor to another which exercise involved not only transfer of voluminous papers and documents pertaining to India and various other countries but also organising/scheduling of legal compliances in various matters. It is the further case of the appellant that during the scrutiny and review of statutory compliances, the appellant realised that the period to prefer an appeal against the order dated 27.8.2007 had lapsed and thereafter the appellant?s Attorneys were briefed, the grounds of appeal came to be drawn and thereafter the appellant has immediately approached this Appellate Board with the present condonation of delay application. The delay was not deliberate and it would not have occasioned had the shifting not taken place and in view of this the appellant ought not to be held liable or penalised on account of such delay in filing the appeal. It is also the case of the appellant that the respondent No. 2 on 24.8.2007, without informing the next date of hearing and without the knowledge and representation of the appellant, proceeded with the opposition and decided the matter in absentia of the appellant and passed the impugned order refusing registration of the trade mark of the appellant. As a matter of fact, the appellant has been deprived of its representation in the proceedings before the respondent No. 2, amongst others which is also a ground of appeal, and in case the appeal is not taken on record by this Appellate Board, the appellant would have no other remedy and/or justice and would be prejudiced in a grave manner.
3. The respondent No.1 has on 2.5.2008 filed its reply to the condonation to the delay application stating that the appellant has not made out any justifiable ground for condonation of delay as a shifting from one floor to another floor in the same building does not stop the business of any company, more so, if it pertains to some important matter. The respondent No.1 contradicting the claim of the appellant that the impugned order was passed by the respondent No. 2 in absentia of the appellant and by furnishing a copy of notice received by its Attorneys, has stated that notice of hearing was issued by the Trade Marks Registry, Chennai dated 23.7.2007 as a copy of said notice was also marked to the then appellant?s Attorney, M/s. Bala Kumar Chandrasekharan & Associates. The respondent No.1 has further stated that the appellant seemed to have deliberately with malafide intention delayed filing of the present appeal to gain time to exhaust their inventory of the products under the impugned trade mark and the application for condonation of delay is a dilatory tactic of the appellant and as such ought to be refused by this Appellate Board to discourage such practice in the interest of equity and natural justice.
4. This application for condonation of delay came up before us for hearing when Mr. Vijay Anand. A., Advocate appeared on behalf of the appellant and Ms. P. V. Rajeswari, Advocate appeared on behalf of the respondent No.1.
5. The learned counsel for the appellant submitted that the delay in preferring the appeal by the appellant has taken place because of shifting of legal department of the appellant from one floor to another and the shifting involved not only transfer of voluminous legal documents and paper but also scrutinising, reviewing of legal compliances, organising and scheduling of various matters. During the course of such scrutiny and review of legal compliances, the appellant realised that the statutory period for preferring appeal against the impugned order passed by the respondent No. 2 has expired and the appellant immediately briefed its Attorneys and the grounds of appeal were drawn up and thereafter the appellant has approached this Appellate Board with the appeal. The immediate steps taken by the appellant after the knowledge of its lapse shows that the appellant was neither negligent nor had any malafide on its part but this immediate action taken by the appellant shows that the delay was caused not due to deliberate conduct of the appellant or inaction on its part. The learned counsel relying up on the order of this Appellate Board in Kumar Dal Mills v. Bansi Lal Aggarwal, 2006 (33) PTC 405 (IPAB) and Ruchi Soya Industries Limited v. Om Oil and Flour Mills Pvt. Ltd. & Others, 2007 (34) PTC 133 (IPAB) urged that the delay may be condoned and appeal may be admitted.
6. The learned counsel for the respondent no.1 while opposing the instant application has submitted that the appellant has not made out any justifiable ground for condonation of delay as shifting of legal department from one floor to another in the same building does not stop the business activities of any company and more so if the matter pertains to compliance of some important statutory requirement and the period of delay of 54/55 days is unjustified for the kind of excuse made by the appellant. Learned counsel emphatically denied being wrong and misleading the statement contained in paragraph 2 of the application as it is a matter of fact on record that the notice dated 23.7.2007 for the hearing fixed for 24.8.2007 was issued by the Registry of Trade Marks. In support of her statement the learned counsel drew our attention to a copy of the said hearing notice filled by the respondent No.1. She submitted that the appellant cannot be allowed to state that no opportunity of being heard was given prior to the issue of the order dated 27.8.2007 passed by the respondent No. 2. As the delay was due to dilatory tactic adopted by the appellant to gain time for exhausting inventory of the impugned mark, the instant application deserves to be dismissed.
7. After having heard the counsel for either sides, we have to consider whether the explanation given by the appellant constitute sufficient cause for not preferring appeal within the specified time. Sub-section (1) of section 91 of the Act provide that an appeal against the order of the Registrar of Trade Marks may be preferred within 3 months from the date of the impugned order is communicated. The provisions of sub-section (2) of section 91 of the Act expressly prohibits the admission of an appeal filed after the expiry of period of limitation specified under sub-section (1) of that section and the exception carved out there from provides that an appeal may be admitted after expiry of the period specified under sub-section (1), if the appellant satisfies the Appellate Board that he had sufficient cause for not preferring the appeal within the specified period.
8. Before we discuss the averments of applicant and submission of learned counsel, it may be worthwhile to quote the following principle laid by the Apex Court in the case of Ramnath Sao @ Ramnath Sahu and Others v. Goverdhan Sao and Others, 2002 (3) SCC 195:-
?11. Thus it becomes plain that the expression ?sufficient cause? within the meaning of section 5 of the Act or Order 22 rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute ?sufficient cause? or not will be dependent upon facts of each case. There can not be straightjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation, furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the court should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable point and facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.?
Another Judgment of the Apex Court which may be worthwhile to quote for our present purpose is in the case of N. Balakrishnan v. M. Krishnamurthy 1998 (7) SCC 123. In that case there was a delay of 883 days in filing the application for setting aside the ex-parte decree. The trial Court condoned the delay but in the Civil Revision Petition the learned Single Judge of the High Court set aside the order of the trial Court and dismissed the petition for condonation of delay. The Hon?ble Supreme Court set aside the order of the High Court. Justice K.T. Thomas, speaking for the Court laid down the law observing at paras 9 to 14 thus:
?10. It is axiomatic that condonation of delay is a matter of discretion of the Court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is within a certain limit. Length of delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own findings even untrammelled by the conclusion of the lower court.
11. The reason for such a different stance is thus: The primer function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
12. Rules of limitation are not meant to destroy the right of parties. They are meant see that parties do not resort to dilatory tactics, but seek their damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
13. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This court has held that the words ?sufficient cause? under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal v. The Administrator, Howrah Municipality AIR 1972 SC 749.
14. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party of his loss.?
9. Now, we would come to the averments made in the application and submissions of the learned counsel for the appellant. The appellant has stated that the appeal could not be preferred because of shifting of the appellant?s legal department from one floor to another and such shifting involved not only transfer of voluminous documents but also involved scrutiny and review of statutory compliances required to be made and organising and scheduling them for compliance and during the course of such scrutiny the present lapse came to the notice of the appellant and thereafter the Attorney was briefed immediately. The appellant has failed to explain when the shifting of legal department began, when shifting completed, when the lapse came to its notice and when the Attorney was briefed. Even there is no averment as to whether the impugned order was got mixed with other documents or was consigned to the record. The appellant has not pleaded that there was n
Please Login To View The Full Judgment!
o malafide or negligence on its part in not preferring the appeal within the limitation period. The overall attitude of the appellant evidently has been very casual. The averment made by the respondent No.1 in paragraph 11 of its reply that the appellant seems to have deliberately delayed in filing of the appeal to gain time to exhaust their inventory of the products under the impugned trade mark and the present application is a dilatory tactic of the appellant also remains unrebutted during the course of arguments. From the pleadings it appears that shifting is not the cause of delay but the shifting has caused to bring the lapse to the notice of the appellant, which in other words means that the explanation given for delay itself is wrong in the absence of elaboration as shifting cannot be reason for delay when the order to be appealed against was found either amongst the transferred or to be transferred documents. The ground made out by the appellant that no opportunity of being heard was given to it by the respondent No. 2 before passing the impugned order is negatived by filing a copy of hearing notice dated 23 7.2007 by the respondent and the genuineness of copy of the said hearing notice was not disputed during the course of hearing. After careful consideration, we are of the considered view that the explanation contained in the application is not acceptable or do not constitute sufficient cause for condoning the delay. The cases relied upon by the appellant are of no help to it as the facts are distinguishable. 10. In view of the above, the condonation of delay application being C.O.D.No. 03/2008 is dismissed. There shall be no order as to costs.