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Nisar Enterprises v/s Vikash Fashion Clothing (P) Ltd., & Others

    COD No.5/2008 IN S.R. No.355/2007/TM/IPAB

    Decided On, 01 August 2008

    At, Intellectual Property Appellate Board

    By, HON'BLE SHRI Z.S.NEGI
    By, CHAIRMAN & HONBLE MS. S. USHA
    By, TECHNICAL MEMBER

    For the Applicant: L. Ram Prasad, Advocate. For the Respondent: R1 Ashok Kumar J. Daga, Advocate.



Judgment Text

Hon'ble Ms. S. Usha, Technical Member:


The above application is to condone the delay of six days in filing the appeal in S.R.No.355/2007/TM/IPAB.


2. The appeal has been preferred against an order dated 21.09.07 passed by the Deputy Registrar of Trade Marks, treating the opposition to have been abandoned under sub-rule (2) of rule 50 of the Trade Marks Rules, 2003 (hereinafter referred to as the Rule) as the opponents failed to file affidavit of evidence in support of opposition as per sub-rule (1) of rule 50 of the Rules and allowing the application for registration.


3. The petitioner has stated in their application that they received the copy of the order dated 21.09.2007 on 16.10.2007 with a covering letter dated 10.10.2007. The counsel for the petitioner had immediately i.e. on 17.10.2007 written a letter to the Registrar of Trade Marks stating that the evidence as per sub-rule (1) of rule 50 of the Rules were filed in time and were on record. The attorneys had sent several reminders to the Trade Marks Registry on 16.11.2007, 18.12.2007 and on 02.01.2008 for which they received no reply and then had filed this appeal before this Board on 21.01.2008.


4. The petitioner further stated that there has been a delay of six days for the above reasons and prayed that the delay be condoned and the appeal be taken on record.


5. The respondent filed their counter to the application for condoning the delay raising a few technical issues. The first averment was that the appeal was filed after the limitation period and so the appeal itself has to be dismissed on this ground. Moreover, the petitioner being fully aware that the appeal is being filed after the limitation period has not filed the condonation of delay application at the time of presenting the appeal. The said communications said to have been sent to the Registrar of Trade Marks, copies of which were not sent to the respondent herein, itself creates a doubt about the attitude of the petitioner. The respondent, therefore, prayed that the application for condonation of delay be dismissed with costs.


6. We have heard the matter on 02.07.2008. Shri L. Ram Prasad, learned counsel appeared on behalf of the applicant and Shri Ashok Kumar J. Daga, learned counsel appeared on behalf of the respondent No. 1.


7. The learned counsel for the petitioner submitted that there was a delay of six days which could be condoned by this Appellate Board in its own discretion. The counsel submitted that the delay was not due to any wanton reasons. The counsel drew our attention to the letters correspondences sent to the Registry as the impugned order was wrongly passed without considering the evidence filed in the opposition proceedings. The counsel further submitted that as they did not receive any reply to their various letters to the Trade Marks Registry, the petitioner filed the appeal before this Board. The counsel relied on various judgements in support of his case to condone the delay in filing the appeal.


8. The learned counsel for the respondent vehemently opposed the application to condone the delay. The impugned order is dated 21.09.2007 which was sent on 10.10.2007 and the same has been received on 16.10.2007 by the petitioner. The appeal has been filed on 21.01.2008. The application for condoning the delay has been filed on 12.03.2008 after a defect notice has been sent by the Registry of this Appellate Board, so delay will have to be calculated upto 12.03.2008 which will be more than six days as claimed by the petitioner. The counsel also stated that the petitioner instead of appealing against the order of the Registrar has written letters to the Registry which is not proved and the same has not been addressed to the respondent No. 1. Without any acknowledgement to the letters, the same cannot be considered as a valid reason for the delay. On the above submissions, he prayed that the application be dismissed with costs.


9. We have carefully considered the arguments of both the counsels and have gone through the documents filed in support of the condone delay application.


10. Before entering into the discussion, it may be worthwhile to refer to the two judgments of the Apex Court. One is the case of ?Ramnath Sao @ Ramnath Sahu and Others Vs. Goverdhan Sao and Others reported in 2002 (3) SCC 195 = 2002(3) LW 417. It is a case under section 5 of the Limitation Act to condone the delay of 130 days of the case of appellant No.3, of 5 years in the case of the appellant No.22 and 3 years in the case of the appellant No.41, in applying to bring on record their legal representatives and substituting the heirs. The learned judges set aside the judgment of the Division Bench of the High Court confirming the order of the learned single judge and condoned the delay by allowing the petition. Of course, that arises out of an application to bring the legal representatives on record, where the learned judges have laid the following principle:


?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 cannot 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 overjubilation 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 courts 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 points of 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 Supreme Court is also worth mentioning. In the case of ?N. Balakrishnan Vs. M. Krishnamurthy ? 1998 (7) SCC 123 = 1999 (1) LW 739)?, there was a delay of 883 days in filing the application for setting aside the ex-parte decree. The Trial Court condoned the delay. However, when the matter was taken to the High Court by way of Civil Revision petition, the learned single judge, set aside the order of the Trial Court and dismissed the petition for condoning the delay. That order of High Court was set aside by the Supreme Court. Justice K.T. Thomas, speaking for the Court, succinctly laid down the law observing thus in paras 8, 9 and 10:


?8. The appellant?s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.


9. 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 no matter, acceptability of the explanation is the only criterion. Sometimes, delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a 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 finding even untrammeled by the conclusion of the lower court.


10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The 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.?


The learned judge of the Supreme Court further observed in paragraphs 11, 12 and 13 which runs thus:


?11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating new persons to seek legal remedy of approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The 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 rights 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.?


12. 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 (1969) 1 SCR 1006 and State of W.B. Vs. Administrator, Howrah Municipality (1972) 1 SCC 366.


13. 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 not 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 the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses.?


11. From the above principle laid down by the Apex Court, the legal position is: (1) the word ?sufficient cause? should receive liberal construction to do substantial justice; (2) what is the sufficient cause? is a question of fact in a given circumstance of the case; (3) It is axiomatic that condonation of delay is the discretion of the Court; (4) length of delay is no matter, but, acceptability of the explanation is the only criterion; (5) the rules of limitation are not meant to destroy the rights of the parties, but, they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly; (6) if the explanation does not smack of mala fides or it is to put forth as part of the dilatory strategy, the court must show utmost consideration to the suitor; (7) if the delay was occasioned by the party deliberately to gain time, then court should lean against acceptance of the explanation and while condoning the delay, the court should not forget the opposite party altogether.


11. In view of the above principles, we have to consider whether the delay can be condoned on the reasons given by the petitioner. In the instant case, we agree that the delay is not inordinate one. We have to consider whether the reason or cause given for the delay is sufficient to condone the delay. In an application to condone the delay in filing the appeal it is well settled principle that a liberal approach should be taken. The facts of the present case is that the petitioner has been writing letters to the Registrar of Trade Marks to rectify the defect as due procedure was followed and complied with. The Registry instead had not looked into and replied to the petitioner?s letters. Here at this juncture, we w

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ould like to comment on the attitude of the petitioner ? the petitioner should have filed a review petition under the Trade Marks law for proper remedy instead he had filed a letter seeking the explanation for the act of the Registrar which shows only a casual attitude of the petitioner. Apart from such attitude, the petitioner also seems to have been casual in filing the appeal. The petitioner being aware that there was a delay had not chosen to file an application to condone the delay, but had filed the application only after a defect notice has been issued by the Registry of this Appellate Board. This attitude of the petitioner again goes to show the interest of the petitioner in proceeding with the matter. 12. Even assuming that the appellants have been negligent in their action, in the interest justice we are of the view that the application has got to be allowed. Though the respondent does not suffer any loss by allowing this application, we are of the view that the respondent No. 1could be compensated by way of costs. We therefore condone the delay and award a cost of Rs.5,000/- to be paid to the respondent No. 1 either directly or through their counsel within 15 days from the date of receipt of this order and file the acknowledgement with the Registry of this Appellate Board, failing which the application shall stand dismissed. On receipt of the acknowledgement of payment of cost to the respondent No. 1 from the petitioner, the Registry is directed to number the appeal and take further necessary action accordingly.
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