Intellectual Property Appellate Board
Koninklijke Philips Electronics Nv vs Kay Kay Home Appliances Pvt. Ltd. And ... on 4 August, 2004
Equivalent citations: 2004(29)PTC601(IPAB)
JUDGMENT
S. Jagadeesan, Chairman
1. The first respondent herein filed the application No. 516710 in Class 11 for registration of their Trade Mark "PHILLIPS" on 13.9.1989. The applicant herein filed the notice of opposition on 4.9.1997. The application of the first respondent was advertised in the Trade Marks Journal No. 1152, dated 1.6.1997, at page 505. Thereafter, the first respondent filed counter on 3.12.1999. The Deputy Registrar of Trade Marks heard the matter in detail, disallowed the opposition of the petitioner herein and directed the registration of the Trade Mark of the first respondent by his order dated 14.6.2002. Since the appeal was not filed within the prescribed period of limitation before this Board, the petitioner filed this petition for condoning the delay of 1 year and 2 months, viz. 426 days.
2. Since this is a petition for condoning delay, it is unnecessary for us to traverse the merits of the facts. The only point for consideration by us is whether there is any sufficient cause for not preferring the appeal within the prescribed period. To find out this, it is necessary to look into the averments made in the application as to the sufficiency of cause for delay.
3. The averments made by the petitioner in his petition are as follows: The order of the Deputy Registrar is dated 14.6.2002. This was received by the petitioner on 4.7.2002. The petitioner's counsel by their letter dated 4.7.2002, informed the petitioner about the dismissal of their opposition and advised them to file an appeal. Thereafter, various correspondences took place between the counsel and the petitioner. After some time, the petitioner failed to follow it up and consequently did not instruct the counsel to file the appeal. In May, 2003, the two persons in the attorney's firm who were dealing with the file of the petitioner had left the firm. Thereafter, a new person in the firm took charge of the file who wrote a letter on 14.11.2003, informing the petitioner that as no instructions were received for filing the appeal against the order of the Deputy Registrar, the file was being closed. The petitioner then realized that the instructions to file the appeal were not communicated to their Attorneys by oversight and in inadvertence. Due to the failure to follow up, the continuity was lost and the instructions could not be sent to file the appeal. On coming to know about the fact from the new counsel that no appeal was filed, steps were taken and the appeal was filed on 5.12.2003. The appeal ought to have been filed on or before 4.10.2002 and due to the bona fide mistake occurred as stated earlier, the appeal could not be filed within the prescribed time.
4. The first respondent filed a reply opposing this petition. In the reply, the first respondent has denied generally all the averments made by the petitioner and further stated that the two persons in the Attorney's firm left the office only 11 months after the receipt of the impugned order. Further, it is stated that it is impossible to believe that for six months in the Attorney's office, the new person did not even review the pending file. They also stated that the petitioner as well as their counsel are guilty of culpable negligence and as such, there is no sufficient cause for condoning the inordinate delay.
5. The learned counsel for the petitioner contended that immediately after the receipt of the impugned order of the Deputy Registrar, there were some effective correspondences with the counsel. But, however, the petitioner failed to instruct their counsel to prefer the appeal. Consequently, on receipt of the intimation in November, 2003, that the file was being closed, the petitioner realized the omission to instruct their counsel. Immediately steps were taken for filing the appeal. The learned counsel for the petitioner also relied upon the judgment of the Supreme Court in the case of 'Collector, Land Acquisition, Anantnag and Anr. v. Mst. Matiji and Ors., AIR 1987 Supreme Court 1353.
6. However, on the contrary, the learned counsel for the first respondent, with all vigour, contended that there is absolutely no explanation for the inordinate delay for the petitioner in preferring the appeal. When the petitioner admitted that they have failed to instruct their counsel to file the appeal, it is a deliberate omission on their part and the same cannot be said to be beyond their control to fall within the precinct of "sufficient cause". Further, the petitioner was not diligent in pursuing the matter by verifying with the counsel as to the progress. Hence, it is a case of total negligence on the part of the petitioner in pursuing the matter for filing the appeal. Consequently, the delay cannot be condoned and the petition is liable to be dismissed. The learned counsel for the first respondent further contended that the right of registration of their Trade Mark and accrued for his client and the same cannot be lightly interfered with.
7. 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 @ Kamnath Saha and Ors. v. Goverdhan Sao and Ors., 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 v. 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 case 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. v. 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 docs 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."
8. 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 do 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.
9. Keeping the above principles in view, we have to consider the explanation given by the petitioner for the delay in the case on hand and also whether the delay can be condoned. There is no doubt that the delay is an inordinate one. Whether there is any justification for the petitioner to knock the door of the court so belatedly is the vital question to be kept in mind in deciding the question of limitation and the rights as between the parties. If a litigant chooses to approach the court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by delay being condoned. The other side would have in all probability, destroyed the records thinking that the records would not be relevant as there was no further proceedings in the matter. Hence, to view a matter of condonation of delay with a pre-supposition that no prejudice would be caused by the condonation of delay to the respondent in that application will be fallacious. It is no fact that each case has to be decided on the facts and circumstances of the particular case. The rules of limitation are based on principles of sound public policy and principles of equity.
10. On a conspectus reading of the principles laid down in various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt to hoodwink the court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is also quite clear to the fact that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words, when the court finds the party who failed to approach the court within the time stipulated comes forward with an explanation for condoning the delay, the court, if satisfied with the delay occasioned not due to the deliberate conduct of the party, but, due to any other reason, then by sufficiently compensates the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered.
11. Now, coming to the facts of the case. The petitioner has stated that immediately after the receipt of the copy of the order of the Deputy Registrar, their counsel duly informed the petitioner about the same and also advised the filing of the appeal. The petitioner has also averred in the petition that there were some correspondences consulting the counsel for filing the appeal. There seems to be some break at some point of time which resulted in the petitioner not instructing their counsel for filing the appeal. This fad was brought to the notice of the petitioner only on 14.11.2003. Immediately thereafter, the petitioner instructed their counsel to file the appeal and the appeal was filed on 5.12.2003. Though there may be some deliberate omission on the part of the petitioner in instructing their counsel to file the appeal, whether such omission is a dilly dallying tactic or with any mala fide intention to deliberately delay the matter. Before this Board, the appellant has paid a fee of Rs. 35,000/- for condoning the delay. When that be so, it is highly improbable to conclude that the petitioner has deliberately delayed the filing of the appeal. Further, there is absolutely no averment in the reply of the first respondent as to what is the benefit derived by the petitioner by the delay in approaching the court by way of appeal. In fact, the petitioner is the aggrieved person by virtue of the rejection of their opposition and the delay caused by them would be a loss to them and not a gain. Hence, we unhesitatingly conclude that the conduct of the petitioner in coming to the court by way of appeal beyond the prescribed period of limitation is not due to any smack of mala fides or part of dilatory strategy. In that case, we have to hold that the reason given by the petitioner for the delay is sufficient cause for condoning the delay.
12. The first respondent in their reply had not put forth any plea of prejudice that would be caused by condoning the delay. Even assuming that the first respondent has got any accrued right which suffers because of the entertaining of the appeal beyond the period of limitation, we are of the view that the interest of justice would be met by awarding cost to the respondent and accordingly we condone the delay and order the petition on the condition that the petitioner shall pay a sum of Rs. 25,000/-by way of cost to the first respondent herein either directly or through the counsel within two weeks from the date of receipt of a copy of this order. Failure to comply with the order would result in the dismissal of the application.