Intellectual Property Appellate Board
Godrej Sara Lee Ltd., A Company ... vs Reckitt Benckiser (India) Ltd. on 15 February, 2008
ORDER
M.H.S. Ansari, J. (Chairman)
1. The respondent in the miscellaneous petition No. 131/2006 in ORA/50/06/TM/KOL being the applicant in the main rectification application has filed the instant application for review of the orders passed by this Board dated 20.6.07 allowing the said petition.
2. The respondent in the rectification application is the registered proprietor of the trade mark Mortein label having the device of Arrow / Laser Beam device bearing registration No. 1071289 in class 5 as of 2nd January 2002 in respect of insecticides, pesticide etc.
3. The case of the petitioner / rectification applicant in the rectification application is that the respondent is not the owner/proprietor of the trade mark device of Arrow / Laser device and the said trade mark is liable to be rectified / removed from the Register of Trade Mark. The respondent in the rectification application filed M.P. 131/06 for dismissal of the rectification application on the ground that there has been non compliance of the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act), more particularly under Section 124(1) of the Act. It was averred in the M.P.131/06 that the applicant, petitioner in the rectification application has not taken leave of the Court before filing of rectification application and hence the rectification application should be dismissed. The M.P. was allowed by this Board by its order dated 22.6.2007.
4. Aggrieved by the said order, the respondent in the M.P. i.e. registered proprietor of the trade mark has filed the present review petition on the ground that the said order suffers from an error apparent on the face of record.
5. In our order dated 22.6.2007, review of which has been prayed for, reliance was placed upon Division Bench judgment of Gujarat High Court in Patel Field Marshal Agencies v. P.M. Diesels Ltd. 1999 PTC (19) 718 (Guj) and the Single Bench judgment of the Delhi High Court in Astrazeneca UK Ltd. v. Orchid Chemicals and Pharmaceuticals 2006 (32) PTC 733 (Del), confirmed by the Division Bench in the report 2007 (34) PTC 469.
6. Shri Ajay K. Gupta learned Counsel for the petitioner contended that the object of Section 124 of the Act is to stay civil proceedings. In case of non-compliance of Section 124(1)(ii) of the Act, then the infringement proceedings would not be stayed. There is no provision for permission to be taken for filing the rectification application. In short it is the submission of the learned Counsel for the review petitioner that the scope of Section 124 is only for the purpose of stay of the suit if any of the party, i.e. the plaintiff or the defendant wants to make a prayer and in case the rectification is filed subsequent to the suit the said party has to satisfy the Court regarding the validity of the trade mark and in case the Court is satisfied that the grounds mentioned in the rectification are tenable then the suit proceedings will be stayed otherwise not. There is no provision or averment, it is contended, in Section 124 that it is mandatory for a party to take permission from the Court to file the rectification if the said party does not wish to make the prayer for stay of the suit. It was, therefore, urged that the order passed by this Board is not sustainable and is liable to be reviewed. The MP filed by the respondent ought to have been dismissed, contended learned Counsel. Shri A.K. Gupta learned Counsel also referred us to a Division Bench judgment of the Madras High Court in Md. Yousuff v. Prabha Singh Jaswant Singh (unreported) which has taken a view contrary to the Gujarat and Delhi High Court Division Bench judgments cited supra and followed in the order under review.
The foremost question for consideration is whether this Board has the jurisdiction or power to review its own decisions or orders.
7. Shri Ajay K. Gupta relied upon the judgment in Om Prakash Gupta v. Praveen Kumar 2000 PTC 326, more particularly to the passage extracted therein from the judgment of the Supreme Court in Indian Bank v. Satyam Fibres (India) JT 1996 (7) SC 135, which was a case for review of judgment of the National Consumer Disputes Redressal Commission, whereby it had passed a money decree. Review was sought on the ground that the judgment was obtained on the basis of a letter which was forged. The Commission did not take notice of this plea. The Supreme Court observed that:
This plea could not have been legally ignored by the Commission which needs to be reminded that the authorities, be they constitutional, statutory or administrative (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as Fraud and Justice never dwell together (Fraus et just nunquam cohabitant).
Regarding the scope of the inherent power of the Court and Tribunal in such matters it was observed as under (Paras 22 and 23 at page 1216):
22. The judiciary in India also possess inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on Court. In the case of the fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent power are powers which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protects its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business.
23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. Similarly, when the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order....
The judgment relied upon by the learned senior counsel Shri Ajay K. Gupta was a case dealing with inherent jurisdiction to set aside an order obtained by fraud practiced upon the Court or Tribunal. That decision, in our respectful view, is of no assistance to decide the question under consideration. No question of fraud arises in the case on hand.
8. In Grindlays Bank v. Central Government the Court was required to consider, inter alia whether the Labour Tribunal had any jurisdiction to set aside the ex-parte award particularly when it was based on evidence. The objection as to the jurisdiction of the Tribunal, raised before the Court was in the following terms:
It is contended that neither the Act nor the Rules framed thereunder confer any powers upon the Tribunal to set aside an ex parte award. It is urged that the award although ex parte, was an adjudication on merits as it was based on evidence led by the appellant, and, therefore, the application made by respondent No. 3 was in reality an application for review and not a mere application for setting aside an ex parte award.
The Supreme Court held as follows:
It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancilliary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition.
The expression, 'review', it was held by the Supreme Court, in the above case is used in two distinct senses, namely "(1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record". It was further held, that it is in the latter sense that the Supreme Court in Patel Narshi Thakershi v. Pradyumansinghji held that no review lies on merits unless a statute specifically provides for it. It was also held that when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such powers inheres in every Court or Tribunal.
9. The decision in Patel Narshi Thakershi v. Pradyumansinghji is an authority for the proposition that the power of review is not an inherent power, it must be conferred by law either specifically or by necessary implication.
10. In the instant case review applicant herein is not seeking a review of our orders due to a procedural defect or inadvertent error committed or even on the grounds of violation of principles of natural justice. Neither the Trade Mark Act, 1999 nor the Rules framed thereunder confer power on this Board to review its own orders.
11. In the case on hand, review is sought on merits. The error sought to be corrected is one of law and according to the review petitioner, it is apparent on the face of record. In other words, in our view, it is a case where the decision of the Supreme Court in Narshi Thakershi's case would squarely apply.
12. Shri A.K. Gupta learned senior counsel, however, drew our attention to Rule 23 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 which lays down that a petition in triplicate may be made to the Registry in the prescribed Form-6 under these Rules within two months from the date on which the order is communicated, accompanied by a statement setting forth the grounds on which the review is sought. That Rule itself does not confer power on this Board to review its own orders or decisions. The rule merely prescribes the form in which an application for review may be made. The rule may be contrasted with Section 127(c) of the Act. That provision deals with powers of registrar and based upon that the Registrar may on an application made in the prescribed manner 'review its own decision'. There is no such corresponding provision either under the Act or the Rules framed thereunder conferring power on the IPAB to review its orders or decisions.
13. We are, therefore, of the view that this Board has no jurisdiction or power to review its own orders and decisions except due to procedural defect or inadvertent error which may require correction ex debito justitiae. The instant petition filed for review on merits, in our opinion is, therefore, not maintainable. It is accordingly dismissed without going into the merits of the contentions raised.