Intellectual Property Appellate Board
Romsons Scientific And Surgical ... vs Assistant Registrar Of Trade Marks And ... on 9 February, 2005
ORDER
S. Jagadeesan, J. (Chairman)
1. The COD is to condone the delay of 28 days in filing the appeal against the order of the Assistant Registrar of Trade Marks, New Delhi, the first respondent herein, dated 19.3.2004, dismissing the review petition filed by the applicant/appellant.
2. The applicant in the statement of grounds dated 2.8.2004 has stated that the order of the Assistant Registrar dated 19.3.2004 was dispatched with the covering letter dated 5.4.2004 to their counsel. The counsel communicated the applicant in the last week of June, 2004 about the order of the Assistant Registrar and on enquiry, the applicant was told that the said order was tacked in wrong file by the staff of the counsel and accidentally the same was traced in the last week of June, 2004, and immediately thereafter, the applicant was informed. The appeal along with the COD was filed in the Registry of this Board on 4.8.2004 and the delay is due to the late communication by the counsel.
3. The respondent filed M.P. No.8/2005 denying the averments of the applicant in the statement of grounds and sought dismissal of the COD.
4. Shri Amit Sindwani appearing for the applicant contended that the order was dispatched to the counsel on 5.4.2004 and the counsel could have received the same either on the 6.4.2004 or 7.4.2004. The counsel informed the applicant about the receipt of the order only in the last week of June, 2004 as he has misplaced the impugned order in some other file. Immediately on receipt of the information from the counsel, the appeal was filed with the petition for condoning the delay since the three months time prescribed under Section 91(1) of the Trade Marks Act, 1999 expired. The delay is only due to the mis- placement of the impugned order of the Assistant Registrar by the counsel and as such, the delay is neither malafide nor deliberate.
5. On the contrary Shri Shailen Bhatia, the learned counsel for the respondent contended that there is absolutely no bonafide in the conduct of the applicant in filing the appeal with the COD. The applicant did not file the appeal along with the petition for condoning the delay and also did not forward the appeal papers to the respondent. Hence, the conduct of the applicant is nothing but to delay and drag on the proceedings. He also referred to some of the judgments drawing our attention to the principles governing the 'sufficient cause' contemplated under Section 5 of the Limitation Act, 1963 and strongly pleaded for the dismissal of the COD.
6. We have carefully considered the above contentions of both the counsel.
7. The record reveals that the applicant filed Form 5 for condoning the delay before this Board on 5.7.2004 without any appeal papers. Form 5 and the covering letter of the applicant are dated 30.6.2004. The Registry of this Board, by letter dated 6.7.2004 informed the applicant that the appeal papers should also accompany the petition for condonation of delay. Thereafter, Form 5 and the appeal papers were filed in the Registry on 4.8.2004. While filing the papers on 4.8.2004, the applicant enclosed the Form 5 and the statement of grounds by changing the date alone and without modifying the contents while giving out the reasons. Perhaps, because of this the learned counsel for the respondent raised the plea that the COD is liable to be dismissed on the ground of non accompanying of the appeal papers.
8. Now, coming to the facts of the case, there is no dispute that the impugned order of the Assistant Registrar was dispatched to the counsel for the applicant on 5.4.2004. Giving a margin of two days for the receipt of the same, the counsel might have received the copy of the order on 7.4.2004. The limitation of three months prescribed under Section 91(1) of the Act expired on 6.7.2004. The fact remains that before the expiry of the period of limitation, the applicant filed the COD on 5.7.2004 with the Registry with the statement of grounds. In paragraph 6 of the statement of grounds, the applicant has stated that the order was communicated to the applicant company by its attorney in the last week of June, 2004 and on enquiry, it was told that the said order was filed in the wrong file by the staff of the attorney as the attorney of the appellant is handling more than 30 opposition matters against the same applicant and the matter got mixed up and was only accidentally traced in the last week of June, 2004. As this COD was not accompanied with the relevant appeal papers, the Registry returned the same with a covering letter dated 6.7.2004 which was dispatched on 8.7.2004. Thereafter, the applicant filed the COD in Form 5 along with the appeal papers on 4.8.2004. As already stated, the statement of grounds in Form 5 is the same as filed on the earlier occasion on 5.7.2004. If the statement of reasons is taken as it is, till the last week of June, 2004, when the copy of the impugned order was traced, there is absolutely no delay. The appeal was filed on 4.8.2004 after the expiry of the limitation for filing the appeal on 5.7.2004. There is a delay of 28 days. The statement of grounds accompanying Form 5 furnished by the applicant does not reveal any reason for the delay of 28 days. In fact, there is absolutely no whisper regarding the delay between 5.7.2004 and 4.8.2004, the date of filing the appeal. When the statement of grounds do not contain the cause for the delay, we are at a loss to ascertain as to whether the delay is due to any sufficient cause. The absence of the reason for the delay would lead to the conclusion that the delay has not been properly explained and as such, there is no sufficient cause to condone the delay.
9. Accordingly, the COD No.12/2004 is dismissed. M.P. 8/2005 is allowed.