Calcutta High Court
M/S. Chandras Chemical Enterprises Pvt ... vs The Registrar Of Trade Marks And Ors on 5 April, 2024
OCD-5
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction
ORIGINAL SIDE
COMMERCIAL DIVISION
IA NO: GA-COM/1/2024
IPDTMA/2/2024
M/S. CHANDRAS CHEMICAL ENTERPRISES PVT LTD.
Vs
THE REGISTRAR OF TRADE MARKS AND ORS.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : April 05, 2024.
Appearance:
Mr. Shuvasish Sen, Adv.
Ms. Sayanti De, Adv.
Ms. Ragini Ghosh, Adv.
...for the appellant.
Mr. Sayantan Basu, Adv.
Mr. Tanmoy Roy, Adv.
Mr. Arunabha Mukherjee, Adv.
...for the respondent No. 3
The Court: Mr. Shuvasish Sen, learned Counsel, is appearing for the appellant and Mr. Sayantan Basu, learned Counsel, is appearing for the respondent No. 3.
The appellant has preferred the present appeal along with application for condoning the delay of ten days to prefer an appeal against the order passed by the Assistant Registrar of Trade Mark dated 10th November, 2023 wherein the Trade Mark Application No. 1609788 in class 1 in respect of "adhesives for industrial purpose" was refused.
Counsel for the appellant submits that the Trade Mark authority had passed the order on 10th November, 2023 and the appellant has applied for 2 certified copy of the impugned order on 6th February, 2024 which was received by the appellant on 15th February, 2024. After receipt of the impugned order, the appellant has affirmed the appeal before the Oath Commissioner of this Court on 16th February, 2024 but subsequent to affirmation of affidavit, the Department has informed the appellant that as per the new regulation of the Intellectual Property Rights Department of this Court all the IP matters needs to be e-filed.
Counsel for the appellant submits that the Department has also pointed out some defects which are to be rectified before e-filing and accordingly, the advocate on record has taken some time to cure the defects which was required for e-filing and accordingly, the same was e-filed on 26th February, 2024 and physically it was filed on 27th February, 2024.
Learned Counsel for the appellant submits that the limitation for filing the appeal is ninety days but there is delay of ten days, due to the change of process of filing of the appeal in the IP division, he submits that there is no willful and intentional delay on the part of the appellant to prefer an appeal. He prays for condoning the delay of ten days.
Counsel for the respondents has challenged the maintainability of the application and submitted that as per the Trade Mark Act, 1999, Sub-Section 2 of Section 91, proviso itself provides for condoning the delay if the appellant satisfied for non-filing of the appeal within the time prescribed under Law. He submits that, the appellant has not invoked the provisions of Sub-Clause 2 of Section 91, proviso but had filed the application under Section 5 of the Limitation Act and as such the application filed by the appellant is not maintainable.
3
Learned Counsel for the respondent has relied upon the judgement passed by the Hon'ble High Court at Bangladesh reported in 18 SCOB (2023) HCD 1 and submitted that the Hon'ble High Court at Bangladesh also held that it is the established principle of law that under Special Law when time period has been prescribed for preferring an appeal, Section 5 of the Limitation Act cannot be applied.
Learned Counsel for the respondent further relied upon the judgement reported in (1974) 2 Supreme Court Cases 133 and submitted that the Hon'ble Supreme Court also held that if the specific provisions has been provided in the Special Act, Section 5 of the Limitation Act cannot be invoked.
Learned Counsel for the respondent also raised an objection stating that the appeal was affirmed by the appellant on 16th February, 2024 but as per the statement made by the appellant in the present application, the same was filed only on 26th February, 2024 after rectifying the defects how the same has been rectified once the appeal has been affirmed by the Oath Commissioner. He also submitted that once it has been affirmed before the Oath Commissioner, it has to be rectified in the Department only and not by taking the appeal back by the advocate of the appellant.
In reply, the learned Counsel for the appellant submits that in this Court there is a procedure that after the affirmation of the affidavit, the advocate on record of the concerned party has to take the concerned file to the filing section for filing and if the filing section found that there are some defects that is to be carried out by the advocate on record in accordance with law and the same procedure has been adopted in the present case as at the 4 time of filing the appeal, the defects have been informed to the advocate on record and subsequently, the advocate on record has rectified the defects.
Heard learned Counsel for the respective parties. Perused the application and judgement relied by the learned Counsel for the respondent.
Admittedly, under Sub-Section 2 of Section 91 proviso of the Trade Mark Act, 1999 there is special provision for condoning the delay and as such, liberty is given to the petitioner to correct the cause title of the application by deleting an application under Section 5 of the Limitation Act and by incorporating the Sub-Clause 2 of Section 91 proviso in the cause title of the application in course of the day.
As regards the procedural aspect, due to procedural defects the appellant cannot not made liable for not condoning the delay of ten days and that is the administrative matter which this Court will look into the administration side.
Considering the submission made by the Counsel for the respective parties, this Court fins that in the Act itself there is provision of condonning the delay and this Court satisfied that the appellant has shown sufficient cause for non-filing the appeal within the prescribed period. Accordingly, delay of ten days is condoned.
GA-COM/1/2024 is disposed of.
IPDTMA/2/2024 is admitted.
The appellant is directed to file requisite number of paper book within the period of three weeks after serving the copy to the learned Advocate for the respondents.
Let the matter appear on 7th May, 2024.
5The appellant is directed that at the time of preparation of the paper book the corrected copy of the cause title of the appeal be incorporated.
(KRISHNA RAO, J.) Sbghosh