Gujarat High Court
Patel Field Marshal Agencies vs P.M. Diesels Ltd. on 15 April, 1998
Equivalent citations: (1998)3GLR1917
Author: S.D. Pandit
Bench: S.D. Pandit
JUDGMENT S.D. Pandit, J.
1. All these three applications are filed by one and the same applicants and the respondents in all the three applications are also one and the same respondents. All the applications were heard together with consent of the parties on preliminary issues and those preliminary issues are being decided by this common judgment.
2. The applicants in all the applications are partnership firms and the applicants have filed all these three applications under the provisions of Section 46 read with Section 56 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the said Act) and the applicants are claiming the rectification of the registration of the Trade Mark No. 224875 in Clause 7, Trade Mark No. 25071 in Clause 7 and Trade Mark No. 252070 in Clause 7 by removal and cancellation of the trade mark in favour of respondent No. 1 from the Register of Trade Marks by preferring these Rectification Application No. 1/97, 2/97 and 3/97. The rectification of the said Trade Mark by way of removal and cancellation is sought on various grounds including the ground of obtaining said registration by playing fraud, violation of the provisions of the Emblems and Names (Prevention of Improper use) Act, 1950 and disclaimer on account of the Trade Mark "MARSHAL" being extensively and commonly used by a majority of manufacturers of the diesel oil engines as suffix to their Trade Mark. It is not necessary to mention in detail the grounds taken by the petitioner for seeking the rectification of the mark of respondent No. 1 "MARSHAL" in this judgment as I am dealing with the two preliminary objections raised on behalf of the respondents in support of their claim of rejection of these applications.
3. All the three rectification applications are opposed by respondent No. 1 by filing affidavit in reply/counter statement. It is contended that present applicants are not bona fide filed by the applicants and the applicants have filed the same to throttle the Suit No. 1612 of 1989 filed by the respondent No. 1 against the present petitioner on the original side of the High Court of Delhi. It is contended that in view of the provisions of Sections 107 and 111 of the said Act, present rectification proceedings are not tenable. It is further contended that the present proceedings is a clear misuse of the process of law and therefore the same should be rejected. It is further contended that the present proceedings are barred by law of limitation and therefore, on that ground alone, present applications deserve to be dismissed.
4. I have heard the learned advocates for both the applicants as well as respondents at length. Therefore, on the basis the submissions made before me, the points which arise for my consideration and my findings thereon for the reasons hereinafter stated are as under :
Points Findings
1. Whether present three Rectification Applications are barred by law of limitation ? Yes
2. Whether present proceedings are misuse of the process of law and not tenable in law ? Yes
3. What order ? As per final order
Point No. 1
5. It is contended on behalf of the respondent that present Rectification Proceedings are governed by the provisions of Article 137 of the Limitation Act, 1963. The pleadings of the petitioner clearly show that the applicants have filed the applications after more than 3 years from the date, the cause of action to file said application had accrued to the applicants. As against this it is contended on behalf of the petitioner that the provisions of the Limitation Act 1963 do not apply to the present proceedings and that the cause of action is a recurring cause of action and it is recurring every day and therefore, the proceedings could not be said barred by law of limitation.
6. Mr. Bhatia Sr. Advocate appearing on behalf of the applicants vehemently urged before me that said Act of 1958 has not provided anywhere the period for filing of Rectification. Application and, therefore, the contention of the respondent that the application in question are barred by law of limitation should not be accepted. He drew my attention to the provisions of Sections 21, 25, 92 and 109 of the said Act. Section 21 provides a period of limitation for filing opposition to the registration of a trade mark. Section 25 provides the period as regards the duration for renewal of the registration of trade mark. Section 92 provides the period of limitation for prosecution under the said Act and Section 109 provides for preferring appeals and period for preferring appeals as provided by the said section. Mr. Bhatia contended before me that when the Legislature had provided such a specific period in those sections, and when neither Sections 46, 56 nor 107 provides for the period for filing Rectification Application, it must be presumed that there could not be any bar of limitation for filing a rectification Applications. The Limitation Act, 1963 is a General Act and the provisions of the said Act will come into force when there is no specific provision of limitation in the Special Act. If by Special Act the period of limitation is provided, say for the purpose of appeal, as has been made in the said Act will govern the appeals provided under the said Act and then the general provisions of law of limitation will not come into play. If the provisions of Article 137 of the Limitation Act 1963 are considered, then it would be quite clear that those provisions will come into play when no period of limitation is prescribed elsewhere in that division under which Article 137 falls. Provision to sub-section (2) of Section 29 of the Limitation Act 1963 clearly lays down that if any special or local law prescribes the period for a proceedings from the period other than the period prescribed under the Limitation Act 1963, then that period will be applicable. Therefore, merely because, there is no specific provision in the said Act 1958, it could not be said that there is no statutory period for filing Rectification Application.
7. Mr. Bhatia has cited before me the case of Ciba Limited v. Mr. M. Ramalingam (AIR 1958 Bom. 56), in support of his contention that the action of rectification of a trade mark is an action in the public interest and that it being an action in the public interest, it could not be said that the same must be taken within the prescribed time. He has put reliance on the following observations of the Divisions Bench of Bombay High Court on page 60 in para 10 :
"The second contention in which there is much more force is that the appellants have come to file this application under Section 46 after considerable delay and no relief should be granted to them. It is true that the granting of relief under Section 46 is a discretionary relief but it is equally true that the Legislature has not laid down any period of limitation for making an application under Section 46, Kerly at p. 271 states : "The delay of the applicant in coming it the court to ask for rectification of the register is not of itself any bar to his application and the marks have removed or varied after being registered for long periods to the knowledge of the applicant ..." But at p. 264 the learned author points out that the demerits of the applicant in any such case are irrelevant to the question whether rectification should be ordered or not, for the question is not between the applicant on the one hand the respondent on the other, but between public and the respondent. But the learned author further points out at p. 272 that where the objection alleged to a mark is that it is the same as that of the applicant, or that it has such resemblance to his as to be calculated to deceive, it will be some evidence against the applicant, on whom the burden, lies of showing that registration was made without sufficient cause, if he had stood by and allowed the registered proprietor to use the mark objected for a length of time, especially if no cause of actual deception is proved. But the learned author also points out that in such case two things have got to be considered first, what was the reason of the delay in the application to expunge, and, secondly, whether any substantial injury has been caused by the delay to the person who has registered. Therefore, the question of delay must be approached from this point of view whether the applicant stood by and thereby caused substantial injury to the respondent and the injury was so substantial that the injury would outweigh the interest of the public which the Court must consider where, a trade mark is likely to deceive."
At the outset it must be understood that if said case is fully carefully read, then it would be quite clear that there was no pleading or contention that the application for rectification was barred by law of limitation. What was urged before the Division Bench of Bombay High Court was that the action for the appellant before the Division Bench was hit by the principle of acquiescence and delay and that submission has been dealt with by Honourable Mr. Justice M. C. Chagla, C.J. of Bombay High Court by making the above observations. In 1958, the Indian Limitation Act, 1908 was in force. Then in view of the provisions of Article 181 it was held that said article would be applicable to a proceeding governed by the provisions of Civil Procedure Code. But said Indian Limitation 1908 has been repealed and the new Limitation Act, 1963 has come into force. In the said Limitation Act, the Section 2(b), defines an application by saying that "application" includes a petition. That was not the case under the old Act. In view of the definition of the word "application" as well as the provision of Article 181 under the Indian Limitation Act 1908, it was interpreted that the provisions of the said article were applicable to the applications under the Civil Procedure Code. This distinction between the provisions of the Limitation Act, 1963 and the Indian Limitation Act, 1908 has been considered by the Apex Court in the case of Kerala State Electricity Board v. T. P. Kunhaliunna (AIR 1977 SC 282). The head note of the same is running as under :
"The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the 109 Limitation Act shows that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act, there was no division between applications in specified cases and other application as in the 1963 Limitation Act. The words "any other application" under Article 137 cannot be said on the principle of ejusdeme generis to be applications under the Civil Procedure Code other than those mentioned in Para I of the third division. Any other application under Article 137 would be applications or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when Court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period. Article 137 will apply to any petition or application filed under any Act to a Civil Court. It is not confined to applications contemplated by or under the Code of Civil Procedure.
Where by statutes, matters are referred for determination by a Court of Record with no further provision the necessary implication is that the court will determine the matters as a court.
The changed definition of the words "applicant" and "application" contained in Sections (a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include applications original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdeme generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands the isolation from all other Article in Part I of the third division. Article 137 includes applications within the word "applications". These applications and applications can be under any special Act."
8. Learned advocate for the applicants has also cited before me the decision of another Division Bench in the case of M/s. Kanshiram Surinder Kumar v. M/s. Thakur Das Deoomal Rohire and others (AIR 1982 Bombay 505). In the said case, the Division Bench has followed the earlier decision of Ciba Limited v. M. Rama Lingam (supra), and had considered the plea of acquiescence and delay. In this case also, the Division Bench had not specifically considered the question of Law of Limitation. Therefore, said case is not of any help to the applicants.
9. From the decision of the Apex Court in AIR 1977 SC 282 (supra) it would be quite clear that the provisions of Limitation Act, 1963 would be applicable to a petition/application under the other Acts and if the said petition/application happens to be a petition/application before a Court. Admittedly present Rectification Applications are filed before this High Court. Section 56 of the said Act makes provision for the cancellation or rectification of a trade mark and filing of an application of rectification. Said Section 56 is running as under :
"Power to cancel or vary registration and to rectify the register -
(1) On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the tribunal may make such orders as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto.
(2) Any person aggrieved by the absence or omission from the register of any entry or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the prescribed manner to a High Court or to the Registrar, and the tribunal may make such order for making, I expunging or varying the entry as it may think it.
(3) The tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register.
(4) The tribunal of its own motion, may, after giving notice in the prescribed manner to the parties concerned after giving them an opportunity of being heard, make any other referred to in sub-section (1) of sub-section (2).
(5) Any order of the High Court rectifying the register shall direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectifying the register accordingly.
(6) The power to rectify the register conferred by this section shall include the power to remove a trade mark registered in Part A of the register to Part B of the register."
If the above provisions of Section 56 are considered then it would be quite clear that said Section 56 says that the application for rectification is to be make in the prescribed manner either to the High Court or to the Registrar of Trade Mark by the aggrieved person. It is very pertinent to note that said section does not say that an application for rectification should be made to a "Tribunal", though in the said Section 56 the word 'Tribunal' has been used. If the said section had specifically mentioned that the application must be made to "Tribunal" as defined by the said Act, then it could have been said that the application is made to a Tribunal. Section 2(x) says that "Tribunal" means Registrar or as the case may be the High Court before which the proceeding concerned is pending. If the whole Section 56 is read carefully then it would be quite clear that the word "Tribunal" has been used only in order to avoid repetition of the words, High Court or Registrar, sub-section 5 of Section 56 further mentions that the order of the High Court rectifying the register must be served on the Registrar who shall upon the receipt of such notice rectify the register accordingly. If the definition, "Tribunal given in Section 2(x) is considered then it would be quite clear that "Tribunal" includes both Registrar as well as High Court and if the Legislature intended to treat High Court as a Tribunal then the provision of sub-section (5) of Section 56, would not have found place there. From the provisions to sub-section (5) to Section 56, it is quite clear that though Section 2(x) declares that "Tribunal" includes both Registrar as well as "High Court" it could not be said that when the High Court is considering the rectification Application is a "Tribunal" and not the High Court of original Civil Jurisdiction a Civil Court.
The proceedings of rectification or any proceedings under the trade mark are proceedings coming before the High Court under its original Civil Jurisdiction.
10. Section 107 makes provision for filing an application for rectification before the High Court.
"Application for rectification of register to be made to High Court in certain cases. (1) when a suit for infringement of a registered trade mark the validity of the registration of the plaintiff's trade mark is questioned by the defendant or where in any suit the defendant raises a defence under Clause (d) of sub-section (1) of Section 30 and the plaintiff questions the validity of the registration of the defendant's trade mark, the issue as to the validity of the registration of the trade mark concerned shall be determined only on an application for the rectification of the register, and notwithstanding anything contained of Section 46, sub-section (4) of "Section 47 or Section 56, such application at any stage of the proceeding to the Registrar."
Section 108 of the Act lays down the procedure for application for rectification before the High Court and the sub-section (4) of Section 108 is running as under :
"Subject to the provisions of this Act and the rules made thereunder, the provisions of the Code of Civil Procedure, 1908 (5 of 1958), shall apply to applications to High Court under this section."
If the above provisions to sub-section (4) of Section 108 are considered, then it would be also quite clear that rectification application is an application governed by the provisions of Civil Procedure Code before the High Court and consequently, the provisions of the Limitation Act, 1963 would govern the said rectification application. The learned Counsel for the applicants Mr. Bhatia has cited before me the decision of the Apex Court in the case of Sakuru v. Tanaji (AIR 1982 SC 1279), and put reliance on the following portion of the head note :
"The provisions of the Limitation Act, 1963 apply only to proceedings at "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure ..."
The above head note itself clearly shows that the Apex Court has laid-down bodies other than courts, which are exercising quasi-judicial powers like tribunal and executive authorities are not governed by the provisions of Law of Limitation provided by the Limitation Act, 1963. The proceedings in question is not before any such body or quasi-judicial Tribunal, but the proceedings in question is a proceedings before the High Court. Then this decision of the Division Bench of the Apex Court in AIR 1985 SC 1278, is a decision of a bench presided over by two Judge; whereas the decision of Kerala, State Electricity Board v. T. P. Kunhaliunna (supra) is a decision presided over by a bench of three Judges. Said case of AIR 1977 SC 282 was not cited before the Court in AIR 1985 SC 1278 and therefore, the same was not considered in the case reported in AIR 1985 SC 1279. In the case of Kerala State Electricity Board (supra) the proceedings were under the Indian Telegraphs Act read with Section 51 of the Indian Electricity Act, 1910 taken up by the respondents for claiming additional compensation for removal of some trees standing on his property for the purpose of laying electrical lines. Said proceedings were taken up by filing an application before the District Judge as per the provisions of Section 10 of the Indian Telegraphs Act. One of the contention raised before the District Judge was that said petition was barred by Law of Limitation in view of the provisions of Article 132 of the Limitation Act 1963. Said contention was accepted by the learned District Judge but the High Court of Kerala in Revision reversed the said finding of the learned District Judge by following its earlier decision in AIR 1974 Kerala 202 by holding that Article 137 was not applicable and the said decision of the High Court has been reversed by the Apex Court by holding that as the petition/application was filed in the District Court, it was governed by Article 137 of the Limitation Act 1963.
11. Therefore, from the above discussion it would be quite clear that the proceedings under Section 56 read with Section 46 of the said Act is governed by the provisions of Article 137 of the Limitation Act 1963 which runs as under :
Description of application period of Limitation Time from which right to apply accrues.
Any other application which no period of limitation is provided elsewhere in this division 3 year when the right to apply accrues.
The applicants in all these petition have pleaded in para 24 of each of the applications as under :
"That the cause of action first arose when the Respondent No. 1 filed a suit against the present applicants in the Delhi High Court. The cause of action then arose when the applicants obtained a certified copies of relevant documents (referred above) from the Registrar of Trade Marks and came to know about the deception/fraud played upon by the applicants of the impugned trade mark (for obtaining registration). The cause of action is continuous one and it is continuing from day to day till the filing of the present petition."
12. From the above pleadings of the applicants, it would be quite clear that the cause of action for the petition arose for the first time when the applicants were served with the summons of the suit in Regular Civil Suit No. 1612 of 1989 filed by the present respondent No. 1 against the applicants. Admittedly in the said suit, respondent No. 1 and filed an application under Order 39, Rules 1 and 2 and interim injunction was granted in favour of respondent No. 1. No doubt said interim injunction was ultimately vacated by the Trial Court by holding that the Court had no jurisdiction to entertain the said suit. Against the said decision of the learned single Judge of the Delhi High Court, Letters Patent Appeal is preferred in the Delhi High Court and the said appeal has been admitted and the stay against the operation of the order of the learned single Judge has been granted and said interim injunction order is in force as on today. It is an admitted fact that said civil suit filed by respondent No. 1 against the present applicants alleging that they have committed breaches and violations of the provisions of the said Act of 1958 and therefore, a decree for perpetual injunction is sought against them. As per the above quoted pleadings of the main applications it would be quite clear that the applicants had thereafter obtained information by way of collecting certified copies of various orders from the Registrar of Trade Marks and they came to know about the grounds on which they are seeking the rectification of the trade mark in question. But it has been mentioned as to when they got the certified copy of the documents from the Registrar of Trade Mark. But one thing is quite clear that in para 22 of the applications the applicants have admitted that the respondent No. 1 has based his suit No. 1612 of 1989 on the registration of the trade mark of which the rectification is sought by the applicants.
13. It is also mentioned therein that the applicants had also filed their written statement in the said suit. Unfortunately neither the copy of the plaint nor the copy of the written statement is produced by either of the parties. But one thing is quite clear that the filing of the written statement must have taken place in any case before the end of December 1990 as the suit is filed in the year 1989. When the respondent had filed that suit for getting a decree of perpetual injunction on the strength of the registration of his trade mark, the cause of action for the present application seeking rectification of the said trade mark arose on the date when the applicants were served with the summons of that suit and in any case before the date they filed the written statement. Therefore, if at all the applicants wanted to file any application for rectification of the trade mark the same ought to have been filed within three years from the date of the cause of action. Therefore, said suit ought to have been filed before the end of 1993 by holding in favour of the applicants that they had received copies from Registrar of Trade Marks before January 1990. It is very pertinent to note that the claim for rectification is made by the applicants not on account of the claim that they earlier had the registration of the trade mark similar to the trade mark of the respondent No. 1 and which is being challenged or disputed by the applicant. It is not the claim of the applicants that by continuation of the trade of respondent No. 1 the customers at large will be misled or deceived. In view of the nature of the claim made by the applicants, it could not be said that the rectification of the trade mark is to be considered for public good. Therefore, in view of the disputes between the parties, it could not be said that there is involvement of any public interest in the dispute in question.
14. The cause of action to file the rectification application by the applicants arose when the applicants were served with the suit summons and the order of adinterim injunction. At the most it could be said that it arose when they obtained the certified copies of documents from the Registrar of Trade Mark. But it is not at all possible to hold that there is a recurring cause of action. There is no commission of any repeated or recurring actions by the respondent No. 1 so as to give cause for the applicant to file a rectification application. The alleged act of obtaining the registration of trade mark, by either playing fraud or by violating the provisions of the Emblems and Names Prevention of Improper use) Act 1950 or the disclaimer, has taken place only once when the registration is obtained and when the disclaimer took place. It could not be said that there is a recurrence of the said alleged acts. Therefore, I am unable to accept the claim of the applicants that they have got recurring cause of actions till the date of filing these applications.
15. The applicants are not seeking the rectification of the trade mark on the ground that they have already got registered the trade mark and the respondent No. 1 is using similar trade mark and thereby infringing his right. The applicants want the rectification of the trade mark or cancellation of the same on the ground that the trade mark obtained by the respondent No. 1 was obtained by fraud and that said trade mark is violating the provisions of the Emblems and Names (Prevention of Improper use) Act 1950 and disclaimer on account of trade "MARSHAL" being exclusively and commonly used by majority of manufacturers of diesel oil engines as suffix to their trade mark. They have no where pleaded that any of these grounds came to their knowledge recently or by giving any date within three years prior to the date of filing of the present applications. In the applications, in para No. 24 the cause of action for filing the applications has been mentioned to have arisen when the suit was filed and when the applicants obtained copies or relevant from the Registrar of Trade Marks. Therefore when the pleadings of the applicants clearly show that the cause of action had arisen three years prior to the date of the present applications as the suit was filed in the year 1989 and the written statement must have been filed in the year 1990. However, present applications are filed on 7-4-1997. I therefore, hold that as the present rectification applications have been filed after more than three years after the cause of action has accrued, they are barred by time.
Point No. 216. It is an admitted fact that present respondent No. 1 has filed the Regular Civil Suit No. 1612 of 1989 in the Delhi High Court by alleging that present applicants are infringing the registered trade mark of respondent No. 1. It is also admitted by the applicants in their applications that before filing the said suit, the respondent No. 1 had also served the applicants a registered notice about their illegal activities of infringing his trade mark. In view of this admitted position of the present applicants, it is necessary to consider the provisions of Section 111 of the said Act :
"111. Stay of proceedings where the validity of registration of the trade mark is questioned etc. (1) Where in any suit for the infringement of a trade mark -
(a) the defendant pleads that the registration of the plaintiff's trade mark is invalid; or
(b) the defendant raises a defence under Clauses (d) of sub-section (1) of Section 30 and the plaintiff pleads invalidity of the registration of the defendant's trade mark.
the court trying the suit (hereinafter referred to as the court), shall :
(i) if any proceedings for rectification of the register in relation to the plaintiffs or defendant's trade mark are pending before the Registrar or the High Court, stay the suit the pending the final disposal of such proceedings :
(ii) if no such proceedings are pending and the court is satisfied that the plea regarding the invalidity of the registration of the plaintiff's or defendant's trade mark prima facie tenable, raise an issue regarding the same and adjourn the case for a period of three months from the date of framing of the issue in order to enable the party concerned to apply to the High Court for rectification of the register.
(2) If the party concerned proves to the court that he has made any such application as is referred to in Clause (b)(ii) of sub-section (1) within the time specified therein or within such extended time as the court may for sufficient cause allow, the trial of the suit shall stand stayed until the final disposal of the rectification proceedings.
(3) If no such application as aforesaid has been made within the time to specified or within such extended time as the court may allow, the issue as to the validity of the registration of the trade mark concerned shall be deemed to have been abandoned and the court shall proceed with the suit in regard to the other issues in the case.
(4) The final order made in any rectification proceedings referred to in sub-section (1) or sub-section (2) shall be binding upon the parties and the court shall dispose of the suit conformably to such order insofar as it relates to the issue as to the validity of the registration of the trade mark.
(5) The stay of a suit for the infringement of a trade mark under this section shall not preclude the court making any interlocutory order (including any order granting an injunction, directing accounts to be kept, appointing a receiver or attaching any property), during the period of the stay of the suit."
Now if the provisions to Section 111 of the said Act are considered, then it would be quite clear that when a party is already before the court for an action for infringement of trade mark and if he wants to raise a contention for rectification of any trade mark of the plaintiff, then he must raise a contention to that effect in his written statement in case if he has already not filed a proceeding for rectification. Above provision to sub-section (3) of Section 111 shows that if the contention regarding rectification of the trade mark is raised in the written statement and if the defendants fails to make an application as per the directions of the court or before the appropriate authority within a period of three months or the period further extended by the court, then the issue as regards the validity of the registration is deemed to have been abandoned and the court has to proceed with the suit on other issues. If this provision to sub-section (3) of Section 111 is considered, then it would be quite clear that when a person sued by the holder of a trade mark for infringement of the trade mark, then if the said person has not already filed a rectification application prior to the filing of the suit and has not raised a contention regarding validity of the registration in the written statement under Sections 46 and 47, then it would to be presumed that he has admitted they validity of the registration of the trade mark. Sub-section (3) to Section 111 makes it quite clear that even if he happens to raise a contention regarding the validity of the trade mark, under the provisions of Sections 46 and 56 of the said Act, then he has to make an application for rectification within the period of three months of the further extended period and if he failed to file such an application as per the direction of the court, then it is the statutory presumption that he has abandoned his contention regarding the validity of the registration of the trade mark. Therefore, in view of this provision of sub-section (3) of Section 111 and other sub-section of the said Section 111, a defendant who has been sued for violation of a registered trade mark is not entitled to file a proceeding for rectification of the trade mark, if he has failed to raise that contention in his written statement or by way of filing earlier rectification application. Therefore, in my opinion, the applicants who are defendants in the suit before the Delhi High Court having failed to raise a contention giving grounds to raise an issue regarding rectification of the trade mark or having failed from filing a separate proceeding for rectification after filing of the written statement are not entitled to file a separate rectification application. I therefore, hold that present application are not maintainable in law in view of the failure of the applicants to raise a contention in their written statement which could give raise to an issue regarding validity of the registration of trade mark in favour of respondent No. 1.
17. Learned advocate for the applicants have cited before the number of authorities to show that the applicants are the aggrieved persons and they are entitled to file rectification application but there is no dispute of the fact that the applicants are the aggrieved person and were entitled to file the rectification application prior to service of the suit summons or by raising a contention regarding the same in the written statement. There is no necessity to refer to all those authorities cited by the learned advocates for the parties as I am not holding that these rectification applications are not maintainable on the ground that the applicants are not the aggrieved persons. But in view of the above discussion, it is quite clear that I have come to the conclusion that the applications of the applicants are barred by law of limitation as well as on account of their failure of filing of such applications before they were served with the suit summons and having failed to raise a contention in their written statement.
18. Thus, I hold that these three rectification applications Nos. 1/97, 2/97 and 3/97 are not maintainable. I, therefore, reject each of these three applications bearing No. 1/97, 2/97 and 3/97 with costs.
19. Copy of this judgment be kept on the R & P of rectification application Nos. 2/97 and 3/97.
20. Petition dismissed.
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