Karnataka High Court
M/S Manipal Co-Operative Bank Ltd., vs Mr Sudhakar Pai on 3 August, 2011
Author: Aravind Kumar
Bench: Aravind Kumar
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING f° GROUP THIS DAY, THE COURT MADE THE FOLLOWING. 7. ORDER
Petitioner is seeking for a writ of certiorart to 9 quash the. order dated 22.1.2010 passe¢ d of "cop. | Applieation. ; No. 13/2008 in SR No.354, 2008/1 M/IPAE dated 22, 1.9010 Annexure-M by 27 respondent whereuider appeal filed by Writ Petitioner q nestioning f he order _passed by the Deputy Registrar of Trade, Marks Jated 27.2.2008 who had rejected the opposition rede. by "the petitioner for registration of application filed by the i - respondent on the ground that it is barred 'by limitation. -
7 Heard Sri Harikrishna S Holla, learned Counsel "appearing "for petitioner and Sri Vasanth, learned Counsel ' appeariig 'for ys respondent. 2"¢ respondent Is served and unrepresented. Perused the impugned order as also the grounds urged by the respective learne d advocates. 8 tt is the contention of Mr. Holla appearing for the & petitioner that an appeal came to be filed before the Intellectual Property Appellate Board (hereinafter referred to as 'Board' for the sake of brevity} 2™¢ respondent que shoring a the order passed by the Dy. Registrar of Trade Marks whereunder the petitioner had opposed the registration of trade mark presented by the ist respondent before the 'Trade application came to be filed seeking condenation of delay of 99 days and said application bas been rejécted on hyper technical grounds and as such, he seéks for setting aside the order of appellate authority and. prays for remmanding the matter back to the appéliate hoard for consideration of the appeal on merits.
4, Per contra' Sti Vasanth, learned Counsel appearing
- for le respondent weuld contend that petitioner did not : approach the appellate authority with clean hands and submits that eu mber of days of delay mentioned in the first page 'of application was one month anc in the second page, it "has been mentioned as 99 days and no proper and sufficient
- explanation has been given seeking condonation of delay. He
- su bmits that appellate authority om examination of such information found that there was no sufficient reason given by the petitioner/appelant for condoning the delay and dismissed the same and consequently dismissed the appeal and as such, he supports the order passed by the. appellate board.
5. Having heard the learned advocates appearing for. the parties, it is required to be noticed the folowing passage from the judgment of the Hon'ble apex court in the case of Collector, Land Acquisition, Ananthaag and another Vs. M/s. MST Katigi and Qthe rs reporte ed in AIR 1987 SC 1353:
"it must 4 be "grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds, but Because. it is capable of removing injustice and itis expec ted: to do so."
6. Keeping the principles laid down by the Hon'ble apex court in mind and when fact 'Ss of the case namely, the cause . shown by: the-petitioner before the appellate authority seeking condonation of delay in filing the appeal is examined, it is noticed tha tL there is some justification for the first respondent "to 'eontend that delay has not been properly explained and no docur mentary evidence was placed by the appellant therein. If the delay was enormous arid certain rights had accrued to a party during this interregnum period, then contention of the Is respondent's counsel would have merited acceptance anc rant .. .
not otherwise. In the instant case, first respondent is not prejudiced in any manner whaisoever if the. detay is considered on merits and appeal is disposed of. 'Cis seen Tars from the impugned order that tribunal Having "noticed: two judgments of the apex court cited by the appellant, still came to a conclusion that there is" TO material = to. eoine to a conclusion "as to whether all the nine signatories have gone abroad" and on this short grou rich it came to a conclusion that cause showni by the appellant isnot acceptable. Said finding is too hyper technica' in'as nach as if every day delay is to be explained, then the 'question that would arise would be why not every minute or every second. In the instant case it is neticed that there is d delay of 99 days and the said delay is said to be on the grou nd that appellant had gone abroad and 2s such appeal could not be filed. At this functure, the learned éounsel Sri Vasanth would submit that actual delay _ is Ld 9 days. Neither this was the contention before the appellate tribunal nor the said period was considered as delay . 'period by the tribunal. What the tribunal considered was whether delay of 99 days is to be condoned. In that view of 1e matter, | am of the considered view that impugned order a a & _6- cannot be sustained and accordingly it is hereby quashed. Delay in filing the appeal is condoned by altowin @ the application filed by the appellant on paymient | of cost of Rs.2.000/-. A direction is issued.to the tribunal to take up the appeal on merifs and to dispose of the same 50. 1nerits and in accordance with law sines the petition er has appeared before the court and contested the fatter by. expending time and money, the first : respondent, requ ires to be suitably compensated aid as such "it has: heeri allowed with costs as aforesaid.
Accordingly, Writ , Petition is allowed. Order dated 22.1 2010 annexnre-M te hereby set aside. Matter is remitted back, to the appellate tribunal to dispose of the appeal on nierits and. in accordance with law. All contentions of both the- parties on merits are left open to be considered and adjudicated by the tribu nal.
bie Vie ees or