w w w . L a w y e r S e r v i c e s . i n



Sahil Kohli v/s Registrar of Trade Mark


Company & Directors' Information:- MARK CORPORATION PRIVATE LIMITED [Active] CIN = U74900DL2008PTC175116

Company & Directors' Information:- I TRADE LIMITED [Active] CIN = U67120TN1999PLC043813

Company & Directors' Information:- TRADE INDIA LTD [Active] CIN = U51909PB1982PLC004822

Company & Directors' Information:- SAHIL CORPORATION PRIVATE LIMITED [Strike Off] CIN = U72900DL2005PTC132175

Company & Directors' Information:- R P TRADE PRIVATE LIMITED [Active] CIN = U51909AS1999PTC005646

Company & Directors' Information:- S N KOHLI AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1955PTC002588

Company & Directors' Information:- A R TRADE IN PRIVATE LIMITED [Active] CIN = U51909AS1999PTC005710

Company & Directors' Information:- S 3 M TRADE PRIVATE LIMITED [Active] CIN = U74900WB2013PTC193812

Company & Directors' Information:- C TRADE (INDIA) PRIVATE LIMITED [Active] CIN = U74900KA2008PTC045372

Company & Directors' Information:- KOHLI AND CO PVT LTD [Strike Off] CIN = U51311DL1981PTC011660

Company & Directors' Information:- MARK S AND S PRIVATE LIMITED [Active] CIN = U22219MH2019FTC329785

Company & Directors' Information:- I-W TRADE PRIVATE LIMITED [Strike Off] CIN = U93030MH2012PTC233832

Company & Directors' Information:- U M TRADE PRIVATE LIMITED [Active] CIN = U67190MH2011PTC224523

    OA/6-8 of 2018/TM/DEL

    Decided On, 18 October 2018

    At, Intellectual Property Appellate Board

    By, THE HONOURABLE MR. JUSTICE MANMOHAN SINGH CHAIRMAN & THE HONOURABLE MR. SANJEEV KUMAR CHASWAL
    By, TECHNICAL MEMBER (TRADE MARKS)

    For the Appearing Parties: ---------



Judgment Text

Manmohan Singh, Chairman

The respondent no. 2 had filed three applications bearing no. 2626911 dated 13.11.2013; 2660869 dated 17.01.2014 and 2660870 dated 17.01.2014 applied for Trade mark for CASH FOR GOLD, GOLD BUYERS and WE BUY GOLD for registrations respectively. The said applications were advertised in Trade Mark journal no. 1811 for mark "CASH FOR GOLD" on 21.08.2017. The application was assigned to mark "WE BUY GOLD" & "GOLD BUYERS" on 4.9.2017.

2. The Appellant had filed three notices of oppositions bearing nos. 912504, 912505 & 912506 on 14.12.2017 to the aforesaid applications of the respondent no. 2. And after receipt of the same the respondent no. 2 filed counter statement on 25.12.2017.

3. The Registrar of Trade Marks vide letter dated 27.12.2017 had issued notice under section 21(3) of the Trade Mark Act, 1999 invited attention under rule 45 of the Trade Mark Rule 2017, calling the Appellants to file evidence within two months from the receipt of the notice, failing which opposition will be shall deemed to have been abandoned vide rule 45(2) Trade Mark Rule 2017.

4. The appellant has stated vide their three separate letters of26.02.2018 which were sent by private couriers to the Trademark registry that the appellant has relied upon the facts and grounds mentioned in their three separate oppositions respectively to the applications for registration of the Trade Marks..

The respondent no. 2 has rebutted the said statement of the appellant in respect of the three separate letters delivered by the private courier to respondent no 2 and 1 rather the respondent no. 2 has stated in its counter that three separate letters dated 26.02.2018 in support of oppositions were never served upon the Respondent no. 2. But the Respondent no. 2 has come to know later on of it solely through the trademark registry website.

5. The Respondent no. 2 vide its letter dated 26.03.2018 had filed its evidence in support of its respective applications under Rule 46 of the Trade Marks Rules, 2017 before the Registrar, wherein it was specifically mentioned by the respondent/applicant herein that they were not served by the opponent with the copies intimation letter, or any copies of the evidence in support of its opposition under Rule 45 of the Trade Marks Rules, 2017.

6. It is stated by the respondent no. 2 that after having found the aforesaid letter on the website, respondent no. 2 vide letter dated 26.03.2018 intimated the Registrar of Trade Marks that "having not served by the opponent (Appellant herein) with the copy of the evidence in support of opposition or any intimation under rule 45 of the Trade Marks Rule, 2017." However, the respondent no 2 on its own to be on safer-side, the applicant has filed the evidence/affidavit under rule 46 of the Trade Marks Rule, 2017 with the assertions/arguments reiterating the provision of rule 45(2) of the said Rules, 2017.

7. That in the meantime, the appellant changed its attorney and TM-M in this regard was filed bringing the change the address of service of its attorney on 14.06.2018. The new attorney had also sent letter dated 20.06.2018 to the Trade Marks Registry, requesting them to send the evidence in support of application filed by the applicant under Rule 46 to enable them to file Rebuttal/Rejoinder Affidavit under Rule 47 of the said rules.

8. The Respondent no. 1 had issued notice dated on 12.06.2018 fixing the date for hearing in the impugned matter on 01.08.2018. The opponent through his new attorney has attended the hearing on the above said date and duly apprised the Ld. Tribunal about the aforesaid facts and circumstances to the filing of the letter dated 26.02.2018 of the opponent, under Rule 45 which was filed within the stipulated time.

9. The respondent no. 1, had passed its impugned order on 06.08.2018 and the respondent no 1 has held that the notice of opposition is deemed to have been abandoned under Rule 45(2) of the Trade Marks 2017 and as per rules the application shall proceed further.

10. That the appellant has stated that before passing of the impugned order on 06.08.2018 by the hearing officer, the appellant herein has filed Interlocutory Petition on 03.08.2018 for taking up of evidence under Rule 45 on record along the letter dated 26.02.2018 with an affidavit of erstwhile attorney that they are relying on the facts and grounds of the notice of opposition which was dispatched on the same day but the Registrar i.e. respondent no. 1 has ignored the said Interlocutory Petition with affidavit, while passing the impugned order.

11. Both parties appeared on 01.08.2018 before the registrar and during the course of hearing, appellant/opponent had filed three separate letters dated 31.07.2018 along receipts of the courier company in the name & style of "B.S. COURIER, Coronation Building, Fatehpuri, Ch. Chowk, Delhi-6".

12. These courier receipts filed appellant/opponent shows the dispatching of the letters dated 26.02.2018 but the respondent no. 2 has alleged that these filed courier receipts were found to be fabricated and forged as such the respondent/applicant has filed an FIR No. 291/2018, PS Dwarka against the opponent/appellant herein and the same is registered for forging the valuable security (courier receipts), using the forged document as genuine thereby carrying out act of criminal conspiracy.

13. The respondent has further stated that even the said alleged letters of the opponent/appellant dated 31.07.2018 were also not served upon the respondent no. 2 herein and the communication of the same were found through the website only. The said letters dated 31.07.2018 along with courier receipts has not been put on record by the appellant before this Appellate Board purposely just order to mislead this Board.

14. The hearing was concluded by the Ld. Deputy Registrar on 01.08.2018 and even noting of Ld. Deputy Registrar qua the hearing held on 01.08.2018 was prepared and made on 02.08.2018 by supplementing the reasons that" Rely upon letter filed by opponent agent on 13.03.2018 appears to be time barred" but the receipt stamp of Trade Marks Registry would show that these letters were received only on 13.03.2018.

15. The impugned order was passed by the Ld. Deputy Registrar On 06.08.2018, thereby abandoning all three oppositions of the appellants and subsequently the Registration Certificates were granted to the respondent no 2 here in and the registration certificates were also issued on the same day. Therefore impugned orders were challenged before us by filing of three appeals.

16. The extracts of the impugned order passed by the respondent no. 1 are as under:-

ORDER

"Proceedings were initiated under Section 21 of the Trade Mark Act, 1999 by the above named opponent to oppose the registration of trade mark applied for by the above named applicant and whereas the Counter Statement was filed by the applicant and the same was served to the opponent on 6521-6523 dated 13/06/2018 and whereas within the time prescribed under the rules, neither any evidence in support of opposition was filed nor any statement was submitted on behalf of the opponent to the effect that the opponent does not desire to adduce evidence but wants to rely on the facts mentioned in the Notice of the Opposition. The above-mentioned opposition is, therefore, deemed to have been abandoned under Rule 45(2) of the Trade Marks Rules 2017. The above-mentioned application shall proceed further as per rules."

It Is Hereby Further Ordered that there shall be no order as to cost of these proceedings. Signed and Seated at Delhi this 06 August, 2018.

Dr. Prithpal Kaur

For Deputy Registrar Of Trade Marks

17. The Appellant had admittedly received the counter statement. The evidence under Rule 45(1) of Rules was supposed to be filed within 2 months of the receipt of the service but admittedly the rely upon letter was filed by the appellant/opponent on 13.03.2018 and the same was received by the Registry on i.e. after delay of 13 days.

18. The contentions of the learned senior counsel appearing on behalf of the appellant is that the reliance letter was despatched on time i.e. within two months and once the evidence was filed by the respondent no. 2 under Rule 46, then the stage of Rule 45 was over and it was the duty of the respondent no. 1 to decide the oppositions proceedings on merit rather abandoning the same under deeming provision under Rule 45(2) of the rules.

19. It is submitted before us that the Registrar has failed to appreciate that there is no time expressly provided in the Act for filing evidence under Rule 45 of the rules. Though the Central Government has power to make rules under Section 157 of the Act including with respect to submission of evidence and the time there for under sub-section (4) of Section 21, the time prescribed by rules cannot treated as time expressly provided in the Act.

20. It is submitted by the Senior Counsel Mr. J.P. Singh appearing on behalf of the appellant that the respondent no. 2 filed their Counter Statement on Form TM-0 and copy of the same was dispatched to the former attorney of the opponent on 01.01.2018 from the office of the Trade Marks Registry vide their forwarding letter, which is evident from the online status of the impugned application duly uploaded on the website of Trade Marks Registry. Thus evidence under Rule 45 or letter of reliance on the facts and grounds of notice of opposition was to be filed well within the stipulated time, vide its letter dated 26.02.2018.

21. Therefore, there is no fault or mistake and non-compliance on the part of the opponent in pursuing the Notice of Opposition. The respondent no. 1 could not have passed the order sub Rule (2) of Rule 45 of the Trade Marks Rules, 2017.

22. It is further stated by Mr. J.P. Singh, Learned Senior Counsel for the appellant that the impugned order of the Registrar is totally wrong and perverse and against the principles of natural justice. As the Registrar not even recorded the submissions of the opponent/appellant herein and has passed non-speaking order, this impugned quasijudicial order or administrative decision rendered in the present case is in violation of principles of natural justice, as such it is null and void. There has been a total noncompliance of fundamental principle on the part of the registrar "audialterampartem rule" as such the impugned order by the Ld. Deputy Registrar is liable to be set aside.

23. It is argued by Mr. Singh, Ld. Senior Counsel that the provisions of Sub Rule (2) of Rule 45 of the Trade Marks Rule, 2017 is also directory and not mandatory, the Ld. Deputy Registrar is also empowered to grant enlargement of time for filing evidence/reliance under sub Rule(2) of Rule 45 of the Trade Marks Rules, 2017.

24. The Full bench Judgment of Delhi High Court in Hastimal Jain trading as Oswal Industries v. Registrar of Trade Marks and Ors. 2000 (20) PTC 24 (FB) is relied upon by the appellant. It is stated that there is no amendment in Section 21(4) of the Act, prescribing any time for evidence although amendment was made in Section 21(1) with regard to period for filing Notice of opposition.

25. The Counsel has referred section 127 of the Trade Marks Act , which conveys about "Powers of Registrar", Section 128 conveys about the Exercise of discretionary power by Registrar; Section 129 conveys about the "Evidence before the Registrar" Section 131 conveys about the "Extension of time by the Registrar". It is argued that the Ld. Deputy Registrar can exercise its power to extend or enlarge time but this discretionary power was not used in right perspective by the Ld. Deputy Registrar, thereby it has wrongly and illegally treated the opposition as abandoned of the opponent/appellant herein.

26. Mr. Kirpal, learned counsel appearing on behalf of respondent no. 2 has submitted that Section 21(4) of the Trade Mark Act, 1999 clearly states, that the evidence with the opponent must be submitted in the prescribed manner and within the prescribed time and so it is with the applicant to follow the procedures. It is submitted that section 21(4) of the Trade Marks Act , along with rule 45 of the Trade Marks Rules, 2017 it clearly postulates the compliance's with the filing of evidence on time is clearly specified therein. Further rule 45(2) also embarks that in case no action as per rule 45(1) is initiated within the time specified then opposition shall be treated to be deemed to have been abandoned. In such a case scenario, under section 131 of the Trade Marks Act , the Registrar has no power to condone the delay in any manner, even in the present case the Appellant/Opponent had never applied for seeking condonation delay in a prescribed format that too within stipulated time as prescribed.

27. It is further submitted by Mr. Saurabh Kirpal that a mere reading of the provisions of laws are clear and easy to perceive that rule 45(1) explicitly lays that ".. Opponent shall either leave with the Registrar, such evidence by way of affidavit or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition." But in the present case the appellant has neither intimated the registrar within two months of receipt of the counter statement nor intimated the applicant in writing of his intentions to rely upon the notice of oppositions.

28. There is no dispute that the respondent no. 2 vide its letter dated 26.03.2018 had put it across to the Registrar of Trade Marks of having not received any evidence or rely upon letter filed by the appellant/opponent before it.

29. It is argued by Mr. Saurabh Kirpal that Rule 109 of the Trade Marks Rule, 2017 postulates that an application under section 131 of the Act is to be made in form TM-M the application being moved under rule 109(1) for the satisfaction of the Registrar with in prescribed time. But in the present case no application with any ground ever moved by the opponent as per the prescribed format.

The appellant has failed to move any application under the prescribed format for condoning delay of otherwise despite of having aware from the evidence produced by the respondent no. 2 and issuance of letter dated 26.03.2018.

30. It is argued by Mr. Kirpal that under Rule 45(2) makes it abundantly clear that in case of non compliance of rule 45(1) then the consequences shall follow in the nature, the oppositions shall deemed to be have abandoned. The Hon'ble Apex Court in the judgment The State of Bihar & Ors v. Bihar Rajya Bhumi Vikas Bank Smiti; SLP (civil) no. 4475/2017; judgment dated 30.07.2018 was pleased to hold that provisions of the statute are mandatory, when consequences are provided. Similarly the failure on the part of the opponent to act upon timely under the Trade Marks Act, 2002 and Rule, 2017 that would result into the opposition shall deem to have abandoned.

31. The Hon'ble Apex Court in an another judgment DDA v. Sukhbir Singh & Ors; 2016 AIR (SC) 4275 was pleased to give full effect to the deeming fiction and held as under:

"27. Even going by paragraph 15 of the Satendra Prasad Jain's case, we find that the difference in section 11A of the Land Acquisition Act and Section 24(2) of the 2013 Act really clinches the issue in favour of the land owners. The expression used in Section 24(2), namely, "deemed to have lapsed" is of great significance and differs from the use of the expression "lapsed" in Section 11A. As is well settled, a deeming fiction is enacted so that a putative state of affairs must be imagined, the mind not being allowed to boggle at the logical consequence of such putative state of affairs. Even if we are to agree with Shri Sharan that, post vesting, acquisition proceedings cannot be said to lapse, yet we have to give effect to the deeming fiction contained in Section 24(2)."

32. The Respondent no. 2 has is also relied upon the following judgments, wherein it is specifically held that the time for filing of the evidence affidavit in support of an opposition beyond the statutory period which cannot be condoned in any manner, as such non-filing of the evidence affidavit within the prescribed time would by itself lead to the conclusion that the opposition has been abandoned-

In the matter of Surinder Corporation v. Hindustan Lever Limited and Anr., 2007 (35) PTC 388 (Del). The said judgment is no doubt prayed before the amendment of Rules in 2017.

33. It is the case of the appellant that by the letter dated 27.12.2017 was issued by the Trade Marks Registry to the appellant for filing evidence under Rule 45 and the appellant vide its letter dated 26.02.2018 relied on the facts and grounds stated in the Notice of opposition. As per the appellant, the said letter was dispatched by the attorney on 27.02.2018.

34. In the present case it is admitted fact that the letter dated 26.02.2018 sent by the appellant/ opponent received by the Trade Mark Registry on 13.03.2018, the receipt stamp embossed on the said letter by trademark registry fortifies the date of receipt of the impugned letter. The Counsel for the appellant has also admitted before us that the appellant has not filed any application for extension before the Registrar in that impugned case.

35. In the light of these submissions and as per provisions of laws, the core issue stands before us is as whether the impugned order of the Registrar of Trade Marks is sustainable in law or not?.

36. The stand of the appellant is that the said letter dated 26.02.2018 was dispatched by private courier on 27.2.2018. The Counsel has relied upon the said two receipts of the private courier. The said receipt were not filed before hearing, the counsel for the respondent no. 2 has argued that these receipts are obtained, forged and are fabricated receipts. The Counsel has argued that the office of the attorney in Sukhdev Vihar and even the appellant is from Model town, it is equally intriguing question to engage the services of courier having at Chandni chowk.

37. In reply to the appeal, para 19 of the respondent has submitted the following statement:-

19. It is apparent that appellant in order to gain undue advantage of his failure deliberately filed false & fabricated courier receipts to show dispatch of Rely Upon Letters as being within the time frame. It is very pertinent to mention hereunder that recently on enquiry it was revealed that the appellant to override the trademarks not only deceptively get into the trade dealings with the Respondent no. 2 and during such period gathered the business details of the respondent no. 2 & then adopted the aforesaid impugned marks but also used forged/fabricated courier receipts in the Trade Mark Registry in furtherance of illegally win over the business and business marks of the Respondent no. 2.

That on further enquiry on the authenticity of the courier receipts the Respondent no. 2 found when his employee had a detailed chat with the person on the mobile number "9899362532" mentioned on the aforesaid fabricated/forged courier receipts wherein that person simply denied to have ever commenced work in the name & style of "B.S. Courier, Coronation Building, Fatehpuri, Ch. Chowk, Delhi-6". The said person denied the existence of any courier services/business in the name & style of "B.S. Courier". It is very apparent and clear that the Appellant deliberately with the malafide intent made forged and fabricated receipts showing dispatch of alleged separate Rely Upon Letters and fictitiously showing false service upon respondent no. 2.

38. The employee of courier who has issued the receipts, the telephone conversation recorded transcript is filed by the respondent. The relevant portion of the transcript is reproduced as under:-

Santosh : For me there also comes another with name of Santosh Manoj Malkani: OK.

Santosh : But this number is mine.

Manoj Malkani: Yes.

Santosh : This is my number.

Manoj Malkani: The, BS Company has closed down, this.

Santosh: Yes, please.

Manoj Malkani: BS Company which is a courier company, is your Company.

Santosh : No sir, there is no such Company.

Manoj Malkani: OK.

Santosh : This we were printing like this.

Manoj Malkani: Ok, please.

Santosh : Yes, since about one-month or so I had no work, for taking work from the market but there is no service in this.

Manoj Malkani: Ok, Ok.

Santosh : This is the matter.

Manoj Malkani: Since there also must have been printed with us in the strip in our own.

Santosh : Yes, yes.

Manoj Malkani: Something like BS courier.

Santosh : Yes, yes, had printed, that is what I am saying, I had printed.

Manoj Malkani: Yes.

Santosh : So, had printed, for doing some work, I had lost work, then had printed at that time.

Manoj Malkani: Yes, please.

Santosh : But, had stopped that at the same time.

Manoj Malkani: Ok, Ok.

Santosh: Then.

Manoj Malkani: The, any service to you.

Santosh: Of their there was no service, picking it from market of as BS courier, we used to give Courier to everyone in the market.

Manoj Malkani : Ok, Ok what is why this number.

Manoj Malkani : Ok, Ok.

Santosh : Since was staying there, I did not have any office with me.

Manoj Malkani: Ok, Ok.

Santosh : This is the matter.

Manoj Malkani : So, in case I tell you about goods, will you have it done for me.

Santosh : Sir, I can just tell you this, your goods for Gujarat is in Galii Chal Kisan since right now I am in Santnagar, I come to the market for some time, for work, do not do work so much, I have two four old parties.

Manoj Malkani: Ok, Ok.

Santosh : Those who give very old, only from them I accept work.

Manoj Malkani: Ok, please.

Santosh : OK, this was the matter, this.

Manoj Malkani: Ok, Sir.

Santosh : Then, in the same market give courier to all, give all to them who are courier, I have no company with me.

Manoj Malkani: OK.

Santosh : This is the matter Sir.

Manoj Malkani: I will inform Madam that.

Santosh : Yes, if this is for Gujarat, then it is there only., what is it called Anjani courier.

Manoj Malkani: Anjani Courier, OK.

Santosh : We also give, we also go and give them or give it to some other courier. Manoj Malkani: Ok, it is Ok please.

Santosh : Yes, only this, we have no service.

Manoj Malkani: Ok, in case it is there then after talking with you, will go to them, you will have some discounts given.

Santosh: Yes please?

Manoj Malkani: Will arrange for some discounts since the goods are quite a bit?

Manoj Malkani: The goods will be 400 kilos.

Santosh : This, the courier will not accept, you can have a Cargo on this.

Manoj Malkani: Take a cargo.

Santosh : Yes, please.

Manoj Malkani: Ok, it is fine brother, Ok, OK.

Santosh: Yes (unintelligible)

Manoj Malkani: Ok.

Santosh: Ok.

39. In view of above transcription, it is clear to us that the appellant is not able to produce cogent and clear evidence to show that these letters of reference were reached in time in the office. The photo copies of the courier receipts are not able to prove beyond any doubt. Secondly, the respondent no 1 record showing only copy of the letter having receipt embossed of the date of 13.3.2018 and does not attached any copy of the cover envelope, which could have proved the date of receipt of the courier.

40. The core issue arising in the present case before us is the interpretation of Rule provided under rule 45(1) and (2) of the Trade Marks Rules, 2017 which came into force on 6.3.2017 wherein the consequences of not taking any action under Rule 45(2) will result in the form of abandonment of the proceedings on account of failure to file the evidence with in prescribed time.

41. Another connected question which requires consideration in the present case is whether the Rule 45(2) of the Trade Marks Rules, 2017 operate so inflexibly that it leads to a position, which has no exception but to terminate the proceeding in the form of abandonment, even if the facts of the case warrants otherwise.

42. Since the judgment of Sunrider Corporation v. Hindustan Lever supra was rendered by Delhi High Court in the context of interpretation of Trade Marks Rules, 2002 and the respondent has placed heavy reliance of upon the same, therefore, the analysis and interpretation of the new Rules of 2017 is necessary viz a viz the interpretation rendered by the Delhi High Court under the old.Rules of 2002 and it is only then the assessment can be made as to whether the interpretation rendered under the old rules of 2002 can be applied to the context of the new rules as it is or not.

43. Before answering these two questions, it is noteworthy to ascertain the language of the main provisions operating the opposition viz-a-viz the language of the Rules as they existed in the year 2002 and later amended in the year 2017. For the sake of convenience, the relevant provisions of Trade Marks Act as well as the Rules of 2002 and 2017 relating to the opposition and the extension of time, are reproduced hereinafter:

"21. Opposition to registration.- (1) Any person may, within three months from the date of the advertisement or re-advertisement of an application for registration or "within such further period, not exceeding one month in the aggregate, as the Registrar, on application made to him in the prescribed manner and on payment of the prescribed fee, allows, give notice in writing in the prescribed manner to the Registrar, of opposition to the registration.

(2) The Registrar shall serve a copy of the notice on the application for registration and, within two months from the receipt by the applicant of such copy of the notice of opposition, the applicant shall send to the Registrar in the prescribed manner a counter-statement of the grounds on which he relies for his application, and if he does not do so he shall be deemed to have abandoned his application.

(3) If the applicant sends such counter-statement, the Registrar shall serve a copy thereof on the person giving notice of opposition.

(4) any evidence upon which the opponent and the applicant may rely shall be submitted in the prescribed manner and within the prescribed time to the Registrar, and the Registrar shall give an opportunity to them to be heard, if they so desire.

(5) The Registrar shall, after hearing the parties, if so required, and considering the evidence, decide whether and subject to what conditions or limitations, if any, the registration is to be permitted, and may take into account a ground of objection whether relied upon by the opponent or not.

(6) Where a person giving notice of opposition or an applicant sending a counterstatement after receipt of a copy of such notice neither resides nor carries on business in India, the Registrar may require him to give security for the costs of proceedings before him, and in default of such security being duly given, may treat the opposition or application, as the case may be, as abandoned.

(7) The Registrar may, on request, permit correction of any error in, or any amendment of, a notice of opposition or a counter-statement on such terms as he thinks just.

44. section 131 of the Trade Marks Act , relates to Registrar's power for extension of time. The said Section 131 reads as under:

131. extension of time.- (1) If the Registrar is satisfied, on application made to him in the prescribed manner and accompanied by the prescribed fee, that there is sufficient cause for extending the time for doing any act (not being a time expressly provided in this Act), whether the time so specified has expired or not, he may, subject to such conditions as he may think fit to impose, extend the time and inform the parties accordingly.

(2) Nothing in sub-section (1) shall be deemed to require the Registrar to hear the parties before disposing of an application for extension of time, and no appeal shall lie from any order of the Registrar under this Section.

45. Rule 50 of the Trade Marks Rules, 2002 reproduced hereunder:

50. Evidence in support of opposition.- (1) Within two months from services on him of a copy of the counter statement or within such further period not exceeding one month in the aggregate thereafter as the Registrar may on request allow, the opponent shall either leave with the Registrar, such evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition. He shall deliver to the applicant copies of any evidence that he leaves with the Registrar under this sub-rule and intimate the Registrar in writing of such delivery.

(2) If an opponent takes no action under sub-rule (1) within the time mentioned therein, he shall be deemed to have abandoned his opposition.

(3) an application for the extension of the period of one month mentioned in subrule (1) shall be made in Form TM-56 accompanied by the prescribed fee before the expiry of the period of two months mentioned therein.

46. The combined reading of Section 21(4) read with section 131 of the Trade Marks Act , and Rule 50 of the Trade Marks Rules, 2002 leads to the following interpretations emerging therefrom:

(a) That the section 21(4) of the Trade Marks Act , provides that any evidence, which the opponent or the applicant may rely upon, shall be submitted in a prescribed manner and within prescribed time to the Registrar and the Registrar shall give an opportunity to them to be heard if they so desire.

(b) That as per section 21(5) of the Trade Marks Act , the Registrar shall after hearing the parties, if so required and considering the evidence, decide whether and subject to what conditions and limitations, the registration is to be permitted and may take into account a ground oi objection whether relied upon by the opponent or not.

(c) There is no time limitation period provided by the Trade Marks Act, 1999 for the purposes of filing the evidence in support of the opposition under section 24(4) of Trade Marks Act , as against the same, it is the Trade Marks Rules, 2002 framed under section 157 of the Trade Marks Act , by the Central Government provides the said limitation period under Rule 50 of the Trade Marks Rules, 2002.

(d) The expression prescribed has been defined under section 2(s) of the Trade Marks Act , which means prescribed by the Rules under the Act.

(e) The combined effect of reading of section 21(4) of the Trade Marks Act and section 131(1) of the Trade Marks Act , makes it clear that the Registrar is within its discretion to extend the time period, which is not specifically provided under the Act for doing any act. The filing of the evidence in support of the opposition is such act for which no time limitation has been provided by the Trade Marks Act but by the ' Rules, for which the Registrar is within its discretion to extend the time period.

(f) Once we read Section 21 read with Section 131 and Rule 50 of the Trade Marks Rules, 2002, it is evident that Rule 50(1) limits the power of the Registrar to extend the time period not further exceeding one month in aggregate and, therefore, the request for extension of time under section 131 of the Trade Marks Act , can be filed only to avail one month's time period in aggregate, which has been provided in the Trade Marks Rules, 2002 and not exceeding any further.

47. On the basis of the interpretation arising from the combined reading of Section 21(4) read with Section 131 and Rule 50 of the Trade Marks Rules, 2002, the Delhi High Court in the case of Sunrider Corporation v. Hindustan Lever Ltd. (supra) came to the conclusion by comparing the Rule 50 which was subsisting under the Trade Marks Rules, 1959 viz a viz the changes made in the said Rule by way of amendment in Trade Marks Rules, 2002 that the Registrar's power to extend the time period after the passage of two months has been restricted by way of the amendments carried out in the Rule 50 by limiting the power of Registrar to extend the time period not exceeding one month in aggregate, by inserting the words 'not exceeding one month in aggregate thereafter' in Rule 50(1) and removing the residual discretion by omitting the words "unless the Registrar otherwise directs". This has weighed heavily before the Delhi High Court while giving the mandatory effect to the interpretation of Rule 50(1) of the Trade Marks Rules, 2002.

48. On 6.3.2017, the Central Government has amended the Trade Marks Rules, 2002 and restructured them by making substantial amendments in the said Rules and the operative Rule 45 of the Trade Marks Rules, 2017 came to be enacted in place of Rule 50 of the Trade Marks Rules, 2002 is reproduced hereinafter for the purposes of consideration. It is noteworthy to mention that the language of the Act remains intact and the amendments were only carried out in the Rules. The said Rule 45 of Trade Marks Rules, 2017, is reproduced thus:

45. Evidence in support of opposition:

(1) Within two months from service of a copy of the counter-statement, the opponent shall either leave with the Registrar, such evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition. He shall deliver to the applicant copies of any evidence including exhibits, if any, that he leaves with the Registrar under this sub-rule and intimate the Registrar in writing of such delivery.

(2) If an opponent takes no action under sub-rule (1) within the time mentioned therein, he shall be deemed to have abandoned his opposition.

49. Upon combined reading of Section 21 read with Section 131 and Rule 45 is made then the following interpretation emerges therefrom:

(a) That section 21(4) of the Trade Marks Act , provides that any evidence which the opponent or the applicant may rely upon, shall be submitted in a prescribed manner and within prescribed time to the Registrar and the Registrar shall give an opportunity to them to be heard if they so desire.

(b) That as per section 21(5) of the Trade Marks Act , the Registrar shall after hearing the parties, if so required and considering the evidence, decide whether and subject to what conditions and limitations, the registration is to be permitted and may take into account a ground of objection whether relied upon by the opponent or not.

(c) There is no time limitation period provided by the Trade Marks Act, 1999 for the purposes of filing the evidence in support of the opposition under section 24(4) of Trade Marks Act , as against the same, it is the Trade Marks Rules, 2002 framed under section 157 of the Trade Marks Act , by the Central Government provides the said limitation period under Rule 50 of the Trade Marks Rules, 2002.

(d) The expression prescribed has been defined under section 2(s) of the Trade Marks Act , which means prescribed by the Rules under the Act.

(e) The combined effect of reading of section 21(4) of the Trade Marks Act , and section 131(1) of the Trade Marks Act , makes it clear that the Registrar is within its discretion to extend the time period which is not specifically provided under the Act for doing any act. The filing of the evidence in support of the opposition is such act for which no time limitation has been provided by the Trade Marks Act but by the Rules, for which the Registrar is within its discretion to extend the time period. If one carefully notices the points (a) to (e) as mentioned above, the said interpretation emerging from the provisions of Trade Marks Act, 1999 remains the same as it was existing prior to the amendment of the Rules in the year 2017. This is due to the reason that the language of the Act has not undergone any change and only the Rules have undergone a change by way of amendment. Now one can proceed to assess the distinction arising out of the comparison of earlier Rule 50 of Trade Marks Rules, 2002 viz a viz the newly enacted Rule 45. of the Trade Marks Rules, 2017.

(f) If one seize of Rule 45 of the Trade Marks Rules, 2017 carefully then it is evident from the reading the said Rule, that framers of the Rule 45(1) have completely omitted the aspect of granting of period of extension by the Registrar of Trade Marks after the passage of period of two months from the service of the notice of opposition. On the contrary, the earlier Rule 50 of the Trade Marks Rules, 2002 provided for the period of extension of time and restricted the discretion of the Registrar to one month by providing the wording 'not exceeding one month in aggregate thereafter.'

(g) These wordings 'not exceeding one month in aggregate thereafter' which were present in the earlier Rule 50 of the Trade Marks Rules, 2002 gave the mandatory effect to the operation of the said Rule by restricting and controlling the discretion of the Registrar in granting the period of extension of time to the period of one month in aggregate and not thereafter.

(h) Since the said wording 'not exceeding one month in aggregate thereafter' has been omitted from the Rule 45 of the Trade Marks Rules, 2017, the effect of the said omission of the said wording from Rule 45 leads to removal of the discretion upon the Registrar's power to extend the time period for filing the evidence in support of the opposition.

(i) The resultant effect of the interpretation arising from points (f) to (h) is that the Registrar by virtue of section 131 of the Trade Marks Act , shall continue to vest with the discretion to extend the time period which is not provided under the Act. As we have seen in points (a) to (e) that the filing of the evidence in support of the opposition is not of such time period which is provided under the Act, therefore, the provisions of section 131 of the Trade Marks Act , shall operate in full vigour and the Registrar shall be left with discretion to condone the time period for filing the evidence in support of the opposition contrary to Rule 45 (2) of the trademark rules 2017.

(j) It is thus made clear that after reading of the new Rule 45(1) of the Trade Marks Rules, 2017 that the operation of Rule 45 cannot be given a mandatory effect in view of the operation of section 131 of the Trade Marks Act , which clearly empowers the Registrar to extend the time period upon being satisfied for doing any Act for which time limitation is not provided under the Act.

50. In view of the changes made in Rule 45(1) of the Trade Marks Rules, 2017 and also in view of the discussion arising at points (f) to (j) mentioned in. the preceding paragraphs relating to the interpretation of Rule 45 of the Trade Marks Rules, 2017, the judgment passed in case of Sunrider Corporation v. Hindustan Lever Ltd. (supra.) is clearly distinguishable and is not applicable in view of the changes made in the structure of Rule 45 which omits completely the entire aspect of the registrar discretion of granting the extension and the restrictions, which were imposed earlier in rule 50 of rules of 2002 upon the Registrar's power to extend the time period.

51. As seen above, what weighed heavily before the Delhi High Court is the insertion of the wordings 'not exceeding one month in aggregate thereafter' and omission of the words 'unless the Registrar otherwise directs' in the Rule 50 of the Trade Marks Rules, 2002 which curtailed the discretion of the Registrar to condone the time period by limiting it to one month in aggregate and on the other hand, now since the said discretion itself is removed from Rule 45 of the Trade Marks Rules. 2017, the Registrar by virtue of the provisions of section 131 of the Trade Marks Act , will continue to have such discretion to condone the time period which is against the rule 45 of the Rule 2017.

The registrar still enjoys discretion due to the reason that the registrars power to extend the time still flows from section 131 for the act 1999, for which there is no 1 power to grant extension of the time in any manner are provided by the by the act not by the rules. The said power cannot require any reiteration in the rules though rules could have restricted those powers as done earlier in rule 50 by limiting the number of requests for extension of time to one month in aggregate.

52. But the-altogether removal of the wordings relating to the extension of time from the Rule 45 will yield different results wherein one has to again revert to section 131 which is the parent provision which gives the room to the registrar to extend the time period. Therefore, by removal of the wordings from rule 45, the' power of the registrar to grant extension of time in the matters of filing the evidence beyond two month time period cannot be taken away as the same would be contrary to section 131. The said section thus will continue to operate and the registrar will' continue to have power to grant extension of time upon making of an application in a prescribed manner and prescribed fees upon furnishing of the sufficient cause.

53. In view of the changes made in the Rules and the language of the Rules including Rule 45, the interpretation rendered in the earlier Rule 50 of the Trade Marks Rules, 2002 which restrictedly discretion of the Registrar to grant of extension of time only to one month period in aggregate is removed and consequently the applicability of the judgment of Sunrider Corporation (supra.) under the new Rules the extension of power has been extinguished or have lost its significance, in view of the change in the language of the newly framed Rule 45 of the Trade Marks Rules, 2017.

54. The above analysis clearly suggests that the provisions of section 131 of the Trade Marks Act , would continue to apply to any time period for doing any act, as the time period is not provided under the Act or rule. Any other interpretation to Rule 45(1) and (2) would make the operation of the Rule 45 of the Trade Marks Rules, 2017 as completely inflexible and any extension would attract the violation of the express provisions of the Act, which is section 131 of the Trade Marks Act ,.

55. It is a settled principle in law that the interpretation which should allow the provisions to be made workable in harmonious manner should be adopted and preferred over the interpretation, which would make any of the provisions of the Act as otiose and redundant, in the case of High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor Panchayat and Ors.: [2003] 2 SCR 799 at para 35),

56. The restrictive interpretation on the assumption that the Registrar has no discretion left for condoning the time period for filing the evidence in support of the opposition and the only consequence left is the operation of Rule 45(2) in the form of abandonment of opposition is clearly making the provisions of Section 131 as otiose and redundant, therefore, it is necessary to adopt the interpretation, wherein the discretion is left with the Registrar to condone the time period for filing the evidence in support of the opposition so as to make the provisions of section 131 of Trade Marks Act , workable and continue to apply with respect to those acts for which the time limitation is not provided by the Act for doing any act.

57. Further, it is also settled law that rule making power of the delegate cannot travel beyond the main provision.(kindly see the judgment Addn District Magistrate, Delhi Admn v. Siri Ram and others, (2000) 5 SCC 451 at para 16). Once there is a specific provision under section 131 providing for an extension of time and leaving with the registrar discretion to condone any time limit not specifically provided under the Act and section 21(4) also does not prescribe any time limit and consequences for non filing of evidence.

The operation of rule 45(1) and 45 (2) in rigid and inflexible manner would lead to rule travelling beyond the specific provision of the Act and this will lead to the rule 45 being contradictory and in more specific words ultravirus to section 131 of the Act. Therefore, it is necessary that the interpretation should make the statutory scheme alive and workable should be preferred over and above which leads to repugnance.

58. Even otherwise, though in the year 2008, the Delhi High Court in Sunrider Corporation (supra) has given a mandatory effect to the Rule 50 of the Trade Marks Rules, 2002 by giving special reasons that the Registrar's discretion to extend the time period has been curtailed byway of language of the provisions of Rule 50(1) and (2) of the Trade Marks Rules, 2002, the said position is not existing in the present Rules of 2017.

59. In the meantime, the Hon'ble Supreme Court of India in the year 2016 has also had an occasion to consider section 131 of the Trade Marks Act and whether the Trade Marks Rules can operate in an inflexible manner which is tyrant and oppressive to the justice, the Supreme Court answered this question in negative in the case of Jagatjit Industries Ltd. v. Intellectual Property Appellate Board, (2016) 4 SCC 381: 2016 (65) PTC 242 [SC] wherein the Supreme court observed in the context of section 131 of the Act as under:

"Though Section 131 of the Act refers to the Registrar's satisfaction and refers to conditions which he may think fit to impose, it is clear that he need not pass a separate order in every case if he wishes to extend the time. The decision of the Madras High Court being Allied Blenders and Distillers Private Limited, Mumbai v. Intellectual Property Appellate Board, Chennai and Ors. AIR 2009 Madras 196 : 2010 (42) PtC 57 (Mad) was referred to, in particular paragraph 27 thereof, to show that Section 131 cannot apply to the facts of this case because the said Sub-section will not apply where time to do a thing is expressly provided in this Act. It is true that time to file a notice of opposition is to be done within the time that is expressly provided in Section 21(1) and that Section 131 of the Act would not therefore apply. However, Section 131 is a pointer to the fact that the extension of time by the Registrar is a ministerial act for which no hearing is required."

From the reading of the aforenoted observation of the Supreme Court of India in the context of section 131, it is clear that the supreme court recognized that section 131 is a pointer to the fact that the extension of time is ministerial act and will apply only where the time for doing the thing is not prescribed under the Act. It also observed that section 131 requires registrar's satisfaction. Thus, Supreme Court reaffirms the discretion vested in section 131 of the Act and also observes that it is pointer to the fact that the extension is permissible under the Act.

60. Further, the Hon'ble Supreme Court of India in Jagatjit Industries (supra) repelled the contention of the counsel for the appellant and observed in the context of Trade Marks Rules, 2002 that the procedural provisions are to be construed in the manner which advance and doesn't subvert the cause of justice. In this context, the Court distinguished the judgment cited by the appellate counsel which was relating to power of the Governor which is of executive one viz a viz the power of the Registrar of Trade Marks which is quasi judicial one. In this backdrop, the Supreme Court proceeded to hold in the context of Trade Marks Rules, 2002 that the said Rules are procedural in nature and cannot be tyrant but a servant to the justice. In the words of Hon'ble Supreme Court, it was observed as under:

"Smt. Prathiba Singh also argued that the expression "allows" in Section 21(1) would further show that there has to be an order in writing granting an extension of time and no such order has been produced in the present case. She also cited M. Mazharuddin Ali v. Govt, of A.P. (2000) 10 ScC 383, at paragraphs 7 and 11, to show that in the context of relaxation of Rules made Under Article 309, a specific relaxation by a written order is necessary or else there can be said to be no relaxation of such Rules in law. We may note that the aforesaid judgment deals with the Governor's executive power Under Article 166 of the Constitution. Such power can only be exercised in writing and in the manner prescribed by the said Article. Besides, the Governor's power is an executive power and not a quasijudicial one, as is the power of the Registrar in the present case. This judgment, therefore, does not further case of the Appellant. Also, it is settled law that procedural provisions are to be construed in a manner that advances and does not subvert the cause of justice. This Court in paragraphs 28 and 29 in Kailash v. Nanhku (2005) 4 SCC 480, has held as under:

All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of Code of Civil Procedure or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774 are pertinent: (SCC p. 777, paras 5-6)

The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.

The procedural laws, so, dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex-debitojustitiae where the tragic sequel otherwise would be wholly inequitable Justice is the goal of jurisprudence - processual, as much as substantive.

In State of Punjab v. Shamlal Murari (1976) 1 SCC 719 : 1976 SCC (L & S) 118 the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that: (SCC p. 720)

Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.

In Ghanshyam Dass v. Dominion of India (1984) 3 SCC 46 the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to sub-serve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle." [at paras 28 and 29]

61. From the reading of the above-mentioned observations of the Supreme Court rendered in the case of Jagatjit Industries (Supra), it is clear that normally and invariably the procedural Rules like Rule 45 of the Trade Marks Rules are procedural in nature and cannot be given an interpretation which would subvert the justice. Once there is provision under section 131 of the Trade Marks Act , which gives the discretion to the Registrar to extend the time period which is not provided by the Act and for filing of the evidence, there is no such time period expressly provided by the Act, then it cannot be said that Rule 45(2) shall operate automatically and there cannot be any other circumstance, which can warrant extension of time and that registrar is left with no option but to terminate the proceeding as abandoned by operating rule 45 (2) of the Act.

The said interpretation would be making the procedural law as an oppressive to the justice and also would be contrary to the interpretation of the procedural law as laid down by the Hon'ble Supreme Court in the case of Jagatjit Industries (supra.). Therefore, in view of the interpretation given by the Hon'ble Supreme Court in the case of Jagatjit Industries (supra.), the Trade Marks Rules, 2017 are to be interpreted as not tyrant to the justice but are aiding to the justice.

62. Now, after coming to conclusion that the operation of rule 45 (2) of the Trade Mark Rules 2017 is not automatic which makes it inflexible and more so when there exists a provision under section 131 of the Trade Marks Act empowering the registrar to extend the time period for doing the act for which no specific time limit has been provided under the Act and filing of evidence in support of the opposition is such an act, I shall now proceed to examine in the facts of the present case, the registrar was correct in giving effect to the operation of Rule 45 (2) and drawing the inference as to abandonment in the facts of the present case.

63. Firstly, I may notice certain facts with dates which are relevant that may aid this court to assess whether the order passed on 6.8.2018 was suffer from any legal infirmity or not.

(a) On 27.12.2017, the opponent/appellant herein was served with the counter statement in terms of the provisions of section 21 (2) of the Trade Marks Act ,. It is the case of the appellant that the said letter dated 27.12.2017 was served to the opponent on 1.1.2018. As per Rule 45 (1), the opponent/appellant herein was supposed to file the evidence by way of affidavit on 27. 2. 2018.

(b) On 13.3.2018, the opponent/appellant herein filed a letter intimating to the Registrar that he intends to rely upon the contents of the notice of opposition and reserve his rights to file any further evidence under rule 53 which is misquoted in the letter as the new rule for further evidence is Rule 48. The said letter contained the acknowledgment of the receipt of trade marks office of 13.3.2018.

(c) On 26.3.2018, the applicant files an evidence in support of the applicable under Rule 46 of the Trade Marks Rules 2017 and further raising a point in the covering letter that the requirement provided under rule 45 (1) has not been complied with.

(d) On 13.6.2018, the Trade Marks office proceeds to appoint the hearing fixed for not filing of evidence in support of opposition posted for 1.8.2018.

(e) On 14.6.2018 the opponent proceeds to change his attorney and files a form TM - M to this effect.

(f) The Respondent in the present appeal filed an application seeking a permission to bring an additional facts on record which also contains the fact that on 31.7.2018, the appellant filed some letter dated 31.7.2018 informing that the rely upon letter dated 26.2.2018 was dispatched on 26.2.2018 only.

(g) On 1.8.2018, the hearing was appointed before the trade marks office and hearing officer proceeded to pass the following order/ office noting which is evident from the note sheet filed by the respondent at page no. 54 of its document and the same is also available online on the website of the trade marks office.

"In this impugned matter, the counter statement has been served electronically at the mail address voluntary given by the opponent agent varinder.als@outlook.com on 1.1.2018 and the rely letter filed by the opponent agent on 13.3.2018 appears to be time barred regarding the same the proof has been attached herewith. Order Reserved". The said note sheet bears the signatures and date of 2.8.2018.

8. After the reserving the order and pursuant to the passing of the order dated 6.8.2018, the appellant had also filed an interlocutory application explaining the events and praying that no order in terms of rule 45 (2) may be passed and the hearing be appointed in the matter.

64. Upon consideration of the afore noted events so transpired before the trade marks office, it is clear that what weighed before the hearing officer while passing he order dated 6.8.2018 is the fact that the rely upon letter dated 13.3.2018 filed y the opponent was time barred and the same amounts to failure to comply with he provisions of rule 45 (1) of the Trade Marks Rules 2017 and that resulted into he consequences pre

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scribed under Rule 45(2). 65. It is noteworthy to mention that though Rule 45(1) is a rule provided under he trade mark rules and therefore cannot operate in such an inflexible manner till he time there is a provision for extension of time after showing sufficient cause under the provisions of Section 131 Trade Mark Act, 1999 and there is a mechanism are extension of time set in place as per the scheme of the Trade Marks Act, 1999 and Trade Marks Rules, 2017. However, the position becomes altogether different when any party doesn't avail the benefits of the provisions of Section 131 by filing he extension of time application in a prescribed manner accompanied by the ire scribed fees, explaining the sufficient cause for the delay which has been occasion while complying the requirements of Rule 45(1) of Trade Marks Rules, 2017. 66. The provisions of section 131 of the Trade Marks Act , can be availed only, when an application is made to the registrar in a prescribed manner and accompanying by prescribed fees showing the sufficient cause for extending the time period for doing any act. This is evident from the plain reading Section 131(1). 67. In the facts of the present case, it is clear that no extension application has been filed by the appellant and, therefore, the benefit of the provisions of section 131 of the Trade Marks Act , cannot accrue to the appellant. In the absence of any extension application preferred by the appellant in the prescribed form along with the prescribed fees, it cannot be said that there exist any occasion for the Registrar to condone the delay which has occasioned on account of non-compliance of the provisions of Rule 45(1) and/or nonfollowing the consequences provided under Rule 45 (2). 68. The appellant on the contrary pleaded before this board is that there is no need to file an extension of time application inasmuch as the appellant has filed the letter of reliance within the time frame prescribed under Rule 45 by dispatching the same to the Trade Mark Office on 26.2.2017. In this respect, the appellant furnishes the courier receipts wherein there is no tracking report as to whether such packet has ever reached the Trade Marks Office prior to 13.03.2018. On the other hand, the respondent disputed the position of dispatching of the said letter and also protested for non-compliance of Rule 45 (1) even at the time of filing of evidence in support of the application filed on 27.3.2018. The records of the Trade Marks Registry suggest that the letter of reliance Was received by the Trade Marks Office on 10.3.2018 and there is a stamp of Trade Marks Registry affixed on the said letter, which was duly received by the Trade Marks Office. There is no other contrary record available which can be said to be an unimpeachable evidence to prove the stand taken by the appellant. In such a scenario, the position taken by the appellant that there is no need to file an extension of time since the compliance was made timely before the Trade Mark Office cannot be believed. 69. The respondent, on the other hand, disputes the position taken by the appellant with respect to dispatch of the letter of reliance.on 27.02.2018 by urging that the said courier company for which the receipt has been annexed by the appellant is non-existent for many months together and in support of the same, had filed the application to bring the additional facts on record. Under such disputed position, no comments can be expressed on the same as FIR has been registered by the respondent but one thing is pretty sure that till the time there is a clear evidence available to show the receipt of letter of reliance by the Trade Marks Office, no inference of compliance of the provisions of Rule 45(1) can be made in favour of the appellant. 70. In the present case, once there is a specific provision under section 131 of the Trade Marks Act , which is a special law that prescribed an application to be made in a prescribed manner with the prescribed fees enabling the registrar to consider and grant the extension upon its satisfaction and on furnishing of sufficient cause. Therefore, no compassionate view can be taken in favour of the appellant when the appellant had got numerous opportunities to file the request for extension of time, which includes the time period between 27.12.2017 till 27.2.2018 and thereafter uptil March, 2018 and later uptil the date of conducting the hearing by the Trade Marks Office which was held on 1.8.2018. In that light of the matter, the appellant cannot be allowed to take benefit of its own wrongs by not filing the request for extension of time. 71. Though, it is correct that in the impugned, there are discrepancies about the recording of dates abut at the same, view under Rule 45 (2) has been taken rightly as there was no valid compliance of Rule 45(1) of the Rules. Even filing of evidence by the respondent no. 2 has no bearing as the same was filed on safer-side. If the Rule 45(1) is read in meaningful manner, it mandates that once the evidence is not filed within two months and an extension of time was no sought, the opposition shall be deemed to have been abandoned. Once the said situation is available, the compliance of Rule-46 is meaningless. 72. The respondent no. 2 is suit is also pending against the appellant where same interim order was passed. Further, there is no bar under the Act to take the remedy of rectification under Section 57 of the Act as the registration certificates have been issued. Even prima facie we are of the opinion that the letter was received by the respondent no. 2 after the expiry of two months and when the impugned order was passed, there is no application for extension of time. The opposition has been already been abandoned. 73. In that light of the matter, the order dated 6.8.2018 giving effect to the operation of rule 45 (2) of the Trade Marks Rules 2017 suffers from no infirmity and does not call for interference. The appeals are also dismissed and all the pending applications listed before us are disposed off. 74. However, we clarify that nothing in this order is being decided on merit and secondly the appellant is not barred from filing the rectification petitions. As such there is no issue needs re-adjudication, if the orders are passed under Rule 45(2) of the Rules. 75. No costs.
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