Bombay High Court
The United State And Playing Cara Co vs M/S. Asha Industries And Anr on 21 January, 2021
Author: K.R.Shriram
Bench: K.R.Shriram
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Digitally signed
Meera by Meera M.
Jadhav
M. Date:
2021.01.22
Jadhav 18:30:45
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
+0530
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL IP SUIT NO. 3 OF 1993
The United State & Playing Card Co,. ....Plaintiff
V/s.
Asha Industries & Ors. ....Defendants
Mr. Ramesh Gajria a/w Mr. Amol Dixit and Mr. C A Brijesh i/b Gajaria and
Co. for Plaintiff;
Mr. Minesh Andharia a/w Mr. Jay Shah i/b Shantilal and Co. for Defendants.
Mr. Tushar Ambadas Ingale- Examiner of Trade Marks and Geographical
Indications - in charge of Legal Section, Trade Mark Registry- Mumbai
present through Video Conferencing;
Mr. Satyendra Kumar Pandey, Joint Registrar, Mumbai present.
CORAM : K.R.SHRIRAM, J.
DATED : 21st JANUARY 2021 P.C. :
1 Gajria & Co., advocates for plaintiff have placed on record a letter dated 15th January 2021 addressed to the Registrar of Trade Marks with proof of delivery. The same has been delivered on 15 th January 2021 at 10.30 a.m. Paragraph 3 of the order dated 14 th January 2021 reads as under:
"3. In the circumstances, the Registrar of Trade Marks is directed to remain present either in person or online on the next date, i.e., 21st January 2021, failing which such order as required to ensure his presence will be passed including notice of contempt will be issued against the Registrar of Trade Marks."
2 Despite receipt of the letter alongwith copy of order, the Registrar of Trade Marks is not present either in person or online. Mr. Gajria states that Meera Jadhav 2/6 1.comip-31-93.doc he will inform the Registrar of Trade Marks over telephone to appear online at 2.30p.m. today and also give the link to join online and further caution him that this court will otherwise direct issuance of warrant of arrest against the Registrar of Trade Marks.
AT 2.30 P.M. 3 This suit has been pending for almost 28 years. The court is unable to proceed with the suit since the rectification petition is pending before Intellectual Property Appellate Board (IPAB). IPAB, I am informed, has not proceeded with rectification petition because application no.571038 is pending disposal before the Registrar of Trade Marks. On 29 th August 2016, more than 4 years ago, the Registrar of Trade Marks was directed to dispose of the application no.571038 within a period of 4 weeks to enable the IPAB to proceed with the rectification petition. Copy of the order was forwarded to the Registrar of Trade Marks and IPAB, but still Registrar of Trade Marks slept over the matter.
4 By an order dated 14th June 2019, plaintiff was directed to communicate once again to the Registrar of Trade Marks to take up the application no.570138 forthwith and dispose the same within 6 weeks of receiving communication as the suit has been pending for over 26 years. The Registrar of Trade Marks did nothing despite receiving the order. 5 On 14th January 2021, plaintiff's Trade Marks attorney placed on record copy of a letter dated 19th June 2019 addressed to the Registrar of Trade Marks forwarding the copy of the order dated 14th June 2019, which Meera Jadhav 3/6 1.comip-31-93.doc has been delivered on 21st June 2019, as acknowledged by the Registrar's office. Therefore, Registrar of Trade Marks was directed to remain present either in person or online on 21 st January 2021, i.e., today, with a caution that his failure to appear would result in such order being passed to ensure his presence including notice for contempt. This order was also delivered on 15th January 2021. Still Registrar of Trade Marks did not appear. 6 In the morning session, nobody had appeared. Therefore, to give the Registrar of Trade Marks one more chance, purely by way of indulgence, I had directed plaintiff's advocates to telephone Registrar's office and call upon him to appear at 2.30 p.m. today with a caution that failure to appear would result in warrant of his/her arrest being issued. Despite that even the Registrar did not join.
7 One Mr. Tushar Ambadas Ingale appeared at 2.30 p.m. and claimed to be the legal in-charge in the office of Registrar of Trade Marks, Mumbai. Mr. Ingale states that Registrar of Trade Marks is the rank of Joint Secretary and sits in Delhi and Mumbai office is headed by Joint Registrar, Mr. Pandey, who also did not appear. Mr. Ingale states that the name of Registrar in Delhi is Mr. Rajendra Ratnu and because the tenure of earlier Registrar one Mr. Gupta expired in November 2020, Mr. Ratnu is in-charge Registrar. Mr. Ingale initially was at a loss to explain to why Mr. Ratnu chose not to remain present at 11.00 a.m. or at 2.30 p.m. Then, Mr. Ingale stated the letter dated 15th January 2021 was kept in the file but was not forwarded to Mr. Ratnu. When he was asked why it was not sent, Mr. Ingale said plaintiff's Meera Jadhav 4/6 1.comip-31-93.doc letter was given in cash section and not in dispatch. If that was so then either cash section should have refused to accept and having accepted should have forwarded it to the Joint Registrar's office. In my view, these are all baseless bureaucratic excuses. These can never be reasons for non compliance with orders of the court.
8 Mr. Ingale says he is the legal person, but the order says "Registrar shall appear". The order did not give an option to the Registrar to depute someone else. Therefore, the Joint Registrar atleast should have joined if he was in charge at Bombay. The conduct of the Registrar / Joint Registrar is contemptuous. When the court asked why Mr. Ratnu has not joined at 2.30p.m., Mr. Ingale says he was busy in a meeting. Mr. Ingale was asked why the Joint Registrar has not joined he said, he was the legal person. The court informed Mr. Ingale that it would adjourn the matter for the Joint Registrar to join and impose cost on the Joint Registrar to be deducted from his salary.
At this stage, Joint Registrar, one Mr. Satyendra Kumar Pandey suddenly joined online. He did not even show the courtesy to express regret or apologise and started with a condescending "NAMSAKAR". He also had the audacity to say that he has not received any letter of the advocates or the orders of the court. Plaintiff has filed evidence in court to say that the letter and orders have been served on the office of Registrar of Trade Marks, Mumbai.
9 When Mr. Satyendra Kumar Pandey was asked why plaintiff's
Meera Jadhav
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application was kept pending he states that the matter will be disposed expeditiously and the Deputy Registrar concerned will give personal hearing in this matter at 11.00 a.m. on 27 th January 2021 and also pass the order on or before 5th February 2021 in accordance with law. Statement accepted as undertaking to the court.
I will clarify that I have not made any observations on the merits of the registration application made by plaintiff. 10 Therefore, Registrar of Trade Marks Mr. Ratnu, who is holding charge in Delhi, as stated by Mr. Ingale, shall file an affidavit personally explaining why the application no.570138 has not been disposed by the Registrar of Trade Marks all these years and why no action has been taken by Registrar of Trade Marks despite the orders dated 29 th August 2016, 14th June 2019 and 14th January 2021.
The Joint Registrar Mr. Satyendra Kumar Pandey shall also file an affidavit why he did not remain present online either in the morning session on 21st January 2021 or in the afternoon session at 2.30 p.m. and only Mr. Ingale appeared.
These affidavits shall be filed within two weeks from today, with copy to advocate for plaintiff and defendant. It is made clear that if such affidavits are not filed, the court may be constrained to issue, inter alia, contempt notice against Registrar of Trade Marks and Mr. Pandey. 11 Copy of this order be forwarded by the registry to the Secretary in the Ministry of Commerce and Industry.
Meera Jadhav
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A copy of the order be also placed before the Additional Solicitor General of India for Maharashtra.
Stand over to 11th February 2021, for directions.
(K.R.SHRIRAM, J) Meera Jadhav