Z.S. Negi, Vice-Chairman:

1. The appellant company through Shri Praveen Nagar, the authorised signatory of the appellant, has filed an appeal against order dated 27.4.2005 passed by the Deputy Registrar of Trade Marks, Kolkata disallowing the appellant company's Opposition No. KOL-172311. The appeal has been filed beyond the time limit provided therefor under sub-section (1) of section 91 of the Trade Marks Act, 1999 and hence an application seeking for condonation of delay has also been filed.

2. The reason stated for delayed filing of appeal is that the appellant is based in Indore and the counsel for the appellant is in Mumbai. The appellant had received the Memo of appeal and related documents through its Advocates on 25th/26th July, 2005 was executed and returned back to them together with the cheque for fee payable for appeal. But due to torrential rains, which led to flash floods paralysing life first in Mumbai city and later on in Indore city, the executed memo of appeal returned to the Advocates in Mumbai could not be located by the Advocates in the office when they reopened their office after floods. The documents were, there after, re-executed and the same were received in the office of the Advocate of the appellant in Mumbai on 18th August, 2005.

3. We have heard Shri C.R. Bakshi of Depenning & Depenning and the learned counsel for the respondent No. 1. Learned counsel for the respondent No. 1 has sent his written submission. Learned counsel for the respondent No. 1 mainly states that the petition is not maintainable as the appellant has not exhausted the channel provided for by filing `petition in Form 3 under Rule 14 of the said Rule. Further, the appellant has not come before the Court with clean hands as neither the number of days of delay has been mentioned, nor has explained the delay and any evidence produced or paid the requisite fee.

4. Before discussing the averments of applicant and submission of Ld. Counsel for the respondent No. 1, 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 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 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.'

5. Now we would consider the written submission made by the learned counsel for the respondent No. 1 and averments made in the application. Learned counsel for the respondent No. 1 has perhaps mistaken the rule applicable for filing application for condoning of delay. Application for condoning of delay is required to be filed in Form 5 as provided in the First Schedule to the Trade Marks (Applications and Appeals to the Intellectual Property Appellate Board) Rules, 2003 and not in Form 3 as provided under Rule 14 of the Intellectual Property Appellate Board (Procedure) Rules, 2003. The delay has been explained and the rains and flash floods are in the knowledge of general public, which we do not think is required to be proved by producing any documentary evidence, especially when the Ld. Counsel himself admits knowledge of rains on Saturday and Sunday. The appellant has paid the fee prescribed for condoning the delay of one month. The written submissions of learned counsel for the respondent No. 1 is, therefore, not found acceptable. After careful consideration of the application for condoning of delay and the written submission of counsel for the respondent No. 1, we are of the opinion that due to natural calamity, over which there is no human control, and the resultant effect

of disruption in mail delivery, including loss or misplacement of mail, and movement of transport for some times have compounded the delay in filing the appeal. No negligence or inaction or want of bona fide is found to be imputable to the appellant. We are, therefore, satisfied that the cause shown by the appellant constitute sufficient cause for not preferring the appeal within the time specified under sub-section (1) of section 91 of the Act. 6. In view of the above, the application being C.O.D. No. 5/2005 is allowed. There shall be no order as to costs.