Gujarat High Court
Pacs vs Union on 6 September, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/10245/2010 59/ 59 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10245 of 2010
With
SPECIAL
CIVIL APPLICATION No. 10246 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
1
Whether Reporters of Local Papers may be allowed to see the judgment ?
2To be referred to the Reporter or not ?
3Whether their Lordships wish to see the fair copy of the judgment ?
4Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5Whether it is to be circulated to the civil judge ?
========================================================= PACS CHEMICALS THRO. DIRECTOR,ANJU S BHATT - Petitioner(s) Versus UNION OF INDIA & 4 - Respondent(s) ========================================================= Appearance :
MR YJ TRIVEDI for Petitioner(s) : 1, None for Respondent(s) : 1 - 4.
MR YJ JASANI for Respondent(s) :
5, ========================================================= CORAM :
HONOURABLE MR.JUSTICE H.K.RATHOD Date : 06/09/2010 CAV UDGMENT Heard learned advocate Mr. HS Tolia with learned advocate Mr. YJ Trivedi for petitioners and learned senior advocate Mr. Mihir Joshi with learned advocate Mr. YJ Jasani appearing on behalf of respondent no. 5 on caveat in both petitions.
Facts narrated in list of events in SCA no. 10245/2010 and 10246/2010 are quoted as under:
DATES EVENTS 16/01/2008 Trade Mark of Respondent No. 5 was published in Trade Marks Journal No. 1402 16/02/2009 Notification published in Trade Marks Journal No. 1409 & 1410 09/03/2009 Petitioner have filed opposition to the Application of Respondent 18/08/2009 Respondent No. 3 has served the notice of opposition to the Respondent no. 5 25/08/2009 Respondent no. 5 has written a letter to Respondent no. 3 in response to its letter dated 18/08/2009 26/08/2009 Respondent no. 3 has again served a notice of opposition to Respondent no. 5 12/01/2009 Respondent no. 5 has served a counter statement Form TM 6 to Respondent no. 3 12/03/2010 A notice of Respondent no. 3 dated 24/02/2010 received back by the respondent no. 3 authority 22/03/2010 Respondent No. 5 has filed Interlocutory Petition to reject the Opposition of the Petitioner 30/03/2010 Respondent no. 3 has sent a notice to the petitioner to file its reply to the said Interlocutory Petition with in 21 days 06/04/2010 Said notice of Respondent no. 3 is not received by the Petitioner and received back by the Respondent no. 3 09/04/2010 Respondent no. 3 again issued a notice of hearing and fixed the matter for hearing on 03/05/2010 19/04/2010 The said notice of Respondent no. 3 is not received by the petitioner and received back by the Respondent no.3 30/04/2010 Respondent no. 5 has wrote a letter to Respondent no. 3 stating that opposition is required to be abandoned.
03/05/2010 Advocate of Respondent no. 5 has filed TM 7 for attending the hearing before the Respondent no. 3 06/05/2010 Respondent no. 3 has issued another notice to the petitioner stating that hearing is fixed on 14/05/2010 (Which is not received by the petitioner) 17/05/2010 The said notice of Respondent no. 3 is not received by the petitioner and received back by the Respondent no. 3 17/05/2010 Respondent no. 3 has passed an order, dismissing the opposition of the petitioner and granting the registration in favour of Respondent no.5
24/05/2010 Respondent no. 3 has sent a letter to the petitioner along with the order passed by the same on 17/05/2010 (Which is not received by the petitioner) In both petitions, petitioners have challenged order passed by Deputy Registrar of Trade Marks dated 17/5/2010 under provisions of Trade Marks Act, 1999. This order has been passed in matter of an Interlocutory petition filed by respondent no. 5 dated 22/3/2010. The petitioners not remained present in both cases before Deputy Registrar of Trade Marks in deciding an application no. 1641653/1641655 in class no. 30 in name of M/s Indo Brine Industries Ltd, Agrawal's House, Gokul Park, Plot no. 356, Ward no. 12-B, Tagore Road, Gandhidham, Gujarat. In matter of Opposition no. AMD 742087/742089 thereto by Shri Sanjay G Bhatt, Director of present petitioner M/s. PACS CHEMICAL (A UNIT OF PINKY ADVTG. CO. (P) LTD)., 106, Veena Industries, Opp. Monginis Cake Factory, Veera Desai, Andheri (W), Mumbai 400 053, has verified that statements made in para 1 to 20 of NOTICE OF OPPOSITION are true to best of his knowledge, information and belief. The proceedings have been taken by Deputy Registrar of Trade Marks under section 21 of Trade Marks Act, 1999 by opponents to oppose registration of trade mark applied for by respondent no. 5 and also Interlocutory petition filed by respondent no. 5 dated 22/3/2010 along with an affidavit of Shri Murlidhar Motiram Jeswani, Manager of respondent no. 5 opponent to reject/dismiss notices of opposition lodged by present petitioners against registration of trade mark under application no. 1641653/1641655 in class 30 and also to recall/withdraw direction issued by Registrar.
On 9/3/2009, present petitioners gave notices of their intention to oppose Registration of trade mark by filing notice of opposition on form TM-5 along with a request in Form TM 44. The said notice of opposition was served on respondent no. 5 by letter dated 18/8/2009 for filing counter statement, which was filed by respondent no. 5 on 12/10/2009. The copy of counter statement was served on present petitioners vide office letter no. OA-10720 dated 24/2/2010 and invited their intention to Rule 50.
Thereafter, respondent no. 5 filed their Interlocutory petition on 22/3/2010. The copy was served on petitioners vide office letter no. 0-B-9623 dated 30/3/2010 for their comments. The respondent no. 5 have also filed letter dated 30/4/2010 to issue an order under Rule 50 sub Rule 2 of Trade Marks Rules, 2002 as petitioners have failed to file affidavit under Rule 50 Sub Rule 1. The hearing was fixed on 3/5/2010 where learned advocate Mr. YJ Jasani and others appeared on behalf of respondent no. 5 but none appeared for present petitioner. Therefore, learned advocate Mr. Jasani appearing for respondent no. 5 requested to Deputy Registrar to hear matter ex parte. However, in interest of justice, one more opportunity was given to present petitioners, therefore, matter was adjourned on 14/5/2010 subject to file TM 56 by present petitioners with an instruction that no further adjournment shall be granted. At the time of hearing none appeared on behalf of petitioners and learned advocate Mr. YJ Jasani had appeared on behalf of respondent no. 5.
On the basis of aforesaid facts, one another application no. 1641655 filed by respondent no. 5, where opposition was filed by present petitioners being no. AMD 742089. In that matter also Interlocutory Petition dated 22/3/2010 filed by respondent no. 5 in SCA no. 10246/2010. Except that almost facts are same in both cases. In SCA no. 10246/2010, present petitioners also remained absent as recorded by Deputy Registrar of Trade Marks at page 116 of SCA no. 10246/2010. In short, in both petitions, petitioners are remained absent before Dy. Registrar of Trade Marks.
So, in respect to both cases, contention raised by learned advocate Mr. Tolia that order passed by Deputy Registrar of Trade Mark in absence of petitioners and no notice has been received by petitioners and notice which was sent to petitioners has been received back by Deputy Registrar with an endorsement of left. Therefore, no reasonable opportunity was given to petitioners by Deputy Registrar. The order which has been passed by Deputy Registrar in both cases in gross violation of principles of natural justice being an ex parte order. Therefore, present petitions are filed by petitioners, which are maintainable.
Learned advocate Mr. Tolia also submitted that in present petitions, prayer made in para F of para 12, where it is prayed by petitioners to direct respondent no. 1 and 2 to issue an appropriate uniform guidelines to be adopted by trade mark Registrar/Authority in deciding cases, pending before them strictly in accordance with provisions of Act and Rules in interest of justice. He referred page 103, notice issued by Deputy Registrar of trade mark dated 30/3/2010. He also referred page 104 notice dated 9/4/2010 and also referred page 105, letter of an advocate Mr. YJ Jasani on behalf of respondent no. 5 addressed to Registrar of trade mark dated 30/4/2010, where he submitted that respondent no. 5 has made incorrect and wrong statement in last para that opponent has though received copy of aforesaid notices with copy of counter statement, not filed evidence as per Rule 50 Sub Rule 1 and thereby opponent has by its own conduct abandoned its opposition. Therefore, necessary order is required to be passed under Rule 50 (2) of Rules may kindly be issued at an early date and oblige.
He also referred page 107 notice dated 6/5/2010 and referred page 114 notice dated 30/3/2010, which was received back by Dy. Registrar on 6/4/2010 but no envelop has been produced by petitioners before this Court. He referred page 116 dated 24/2/2010 notice issued by Deputy Registrar of Trade Mark addressed to present petitioners and also page 117 dated 9/4/2010 which along with an envelop page 118 and 119, and page 120 notice dated 6/5/2010 along with envelop 121 and 122 and submitted that these are notices issued by Dy. Registrar of trade marks but not received by petitioners but same has been received back by Dy. Registrar with an endorsement of left. Therefore, no reasonable opportunity of hearing was given to petitioners by Dy. Registrar.
He also submitted that counter statement filed by respondent no.5 also not received by present petitioners. He relied upon Rule 15 to 20 and submitted that in case when parties are not available on given address then alternative address if available, for that notice must have to be served by Dy, Registrar of trade mark. Even he suggests that under Rule 15 sub Rule 5 alternative services through E-mail or Fax is also required to be made available for sending notice to present petitioners, which has not been sent by Dy. Registrar of Trade marks. He relied upon Rule 20 when person or address not available then parties has to supply another address and this procedure as per Rule 15 to 20 has not been followed by Deputy Registrar of trade marks. According to his submission, it amounts to non-compliance of statutory procedure under Rules. He relied upon section 21 and submitted that it is compulsory to serve counter statement to present petitioners. The notice dated 24/2/2010 at page 67 along with counter statement not received by present petitioners. He referred page 97 prayer made by respondent no. 5 in Interlocutory application in para 6(b).
He submitted that in case of delay in filing petition challenging order in question or in case of fraud committed by respondent no. 5, delay may not come in way of petitioners relied upon decision of Apex Court reported in case of Bhaurao Dagdu Paralkar Vs. State of Maharashtra reported in AIR 2005 SC 3330 para 10 and 12, are quoted as under:
10. By fraud is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression fraud involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include any harm whether caused to any person in body, mind, reputation or such others. In short, it is a non economic or non pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceive, the seconded condition is satisfied (See: Dr. Vimala Vs. Delhi Administration (1963 Supp 2 SCR
585) and Indian Bank Vs. Satyam Febres (India) Pvt. Ltd (1996 (5) SCC 550)
12. Fraud as is well known vitiates every solemn act Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consist in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is fraud in law if party makes representation, which he knows to be falls, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.
Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud can not be perpetuated or saved by the application of any equitable doctrine including res judicate. (See: Ramchandrasing Vs. Savitri Devi and Others (2003 (8) SCC 319) He also relied upon various decisions of this Court as well as Apex Court and relied upon relevant para of that decision as under:
* in case of Anup Engineering Limited Vs. Controller of Patents, New Delhi reported in 1982 GLHEL-HC 200681 and relied para 16 which is quoted as under:
16. In the case before us we are convinced beyond any doubt that on a plain reading of sec. 25 of the Patents Act, 1970 a citizen is having a statutory legal right of lodging his objections and/or opposition within a period of four months from the date of the advertisement appearing in the gazette. At this stage we may usefully refer to sec. 25(1) of the Act which is in the following terms:
25. At any time within four months from the date of advertisement of the acceptance of a complete specification under this Act (or within such further period not exceeding one month in the aggregate as the Controller may allow on application made to him in the prescribed manner before the expiry of the four months aforesaid any person interested may give notice to the Controller of opposition to the grant of the patent on any of the following ground namely:
(a) xxxxxxxxx
(b) xxxxxxxxx
(c) xxxxxxxxx
(d) xxxxxxxxx
(e) xxxxxxxxx
(f) xxxxxxxxx
(g) xxxxxxxxx
(f) xxxxxxxxx
(h) xxxxxxxxx
(i) xxxxxxxxx * in case of Maiamma Roy Vs. Indian Bank reported in 2008 (12) SCALE 451, relevant para 3 is quoted as under:
3. We have heard the learned Counsel for the parties and examined the impugned order as well as the other materials on record. After examining the impugned order as well as the materials on record, we are of the view that the order of the High Court can not be sustained. Before the High Court, the appellant sought to contend that before passing the impugned order, the appellant was not at all issued with any notice. The High Court, however, without going into the question whether the notice was at all served on the appellant or not, dismissed the writ petition only on the ground that the appellant has got a right of appeal against the impugned order under the provisions of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. In out view, the High Court was not justified in passing the impugned order on the aforesaid ground. It is well settled that even if an alternative remedy was available to an aggrieved party against a particular order, but if it was open to such party to move a writ application and the court has the power to entertain the same if it finds that while passing the order there has been a violation of the principle of natural justice. That being the position. In the present case the appellant was not served with any notice before passing the impugned order. That being the position and without going into the merits. The impugned order is set aside and the matter is remitted back to the High Court for decision on merits in accordance with law. The High Court is requested to dispose of the writ petition at an early date preferably within six months from the date of supply of a copy of this order to it. We make it clear that we have not gone into the merits of the dispute raised by the parties before us, all questions are left open to be decided by the High Court in accordance with law. The impugned order is, therefore, set aside and the appeal is allowed to the extent indicated above. There will be no order as to costs.
* in case of Committee of Management Vs. Vice Chancellor reported in 2009 (2) SCC 630 para 21 and 25 are relevant therefore, quoted as under:
21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & ors., 1998 8 SCC 1:
15. ... But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged...
(See: also Guruvayoor Devaswom Managing Committee & Anr. Vs. C. K. Rajan & Ors.., 2003 (7) SCC 546) In this case, albeit before us for the first time, the vires of the proviso appended to Sec. 16 of the Act is in question, besides other points noticed by us hereinbefore.
25. Keeping in view the legal questions arising in the matter, we are of the opinion that it was not a fit case where the High Court should have refused to exercise its discretionary jurisdiction to entertain the writ application.
* in case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Ors reported in 1998 PTC (18), relevant para 15 is quoted as under:
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective an efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the Writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction of the vires of an Act is challenged. There is a blethora of case law on this point but to cut down this circle or forensic whirlpool we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.
Except that, no other decision has been relied by him in support of his submissions.
Learned senior advocate Mr. Joshi submitted that petitioners are having alternative effective efficacious statutory remedy of an appeal under section 91 of Trade Marks Act. Learned senior advocate Mr. Joshi relied upon page 86 ground C which is quoted as under:
C The opponent M/s Pacs Chemicals, Mumbai also suppressed the material and important fact that they have already filed a suit for declaration and injunction against Mr. Ram Niwas, M/s Dandi Salt Pvt Ltd, Surat (opponent in Opp. No. AMD 742161 and No. AMD 742162) in the Hon'ble District Court at Jaipur and obtained interim injunction Order dated 26/9/2007 against the use of mark DANDI NAMAK by the said defendants and the said defendants challenged the interim injunction order of the Hon'ble District Court, Jaipur by filing S. B. Civil Misc. Appeal No. 3709 of 2007 in the High Court of Judicature For Rajasthan at Jaipur Bench, Jaipur wherein the injunction order was set aside. Therefore, the opponent is guilty of suppression of material fact, the impugned notice of opposition is not maintainable on this ground also. The Hon'ble Rajasthan High Court while vacating the interim injunction order, pleased to observe vide Order dated 23/5/2008 to read as under:
Admittedly, both the parties do not claim that either of them have been issued a registered trade mark either in favour of the original applicant M/s. Dandi Salt Pvt. Ltd., a company registered which had submitted an application before the Registering Authority on 08/12/2000 or M/s Kunwar Ajay Foods Pvt Ltd., a company which as per the case of the respondent had taken over the business of the Partnership firm M/s Kunwar Ajay Group of Industries in which the proprietorship concerned M/s Kunwar Ajay Foods Pvt. Ltd. which had submitted the application on 24/08/2001 before the Registering Authority has now merged and the assets and liability have now vested with M/s Kunwar Ajay Foods Pvt. Ltd. Since both these applications dated 08/12/2000 and 24/08/2001 have not been decided and the defendant appellant claim their rights through M/s Dandi Salt Pvt. Ltd and the plaintiff respondent claiming their right through M/s Kunwar Ajay Foods Pvt Ltd., the dispute which now centers is, as to which of the two was the prior user of the brand name Dandi Salt and/or Dandi Namak .
During the course of hearing, learned counsel for the parties frankly submitted that the learned trial court while passing the impugned order dated 26/09/2007 and while dealing with the question of prima facie has not considered the matter in the light of the question as to which of the parties namely M/s Dandi Salt Pvt. Ltd or M/s Kunwar Ajay Foods Pvt Ltd. was the prior user of the brand name of Dandi Salt and/or Dandi Namak so as to disentitle and restrain the other party. The finding in that behalf was necessary as to injunct the defendant.
The opponent has thus, suppressed the fact as to filing of the aforesaid civil suit as also the order passed by the Hon'ble Rajasthan High Court while the opponent invoked the jurisdiction of this Hon'ble Tribunal by filing the impugned notice of opposition. Therefore, the opponent who is not coming with clean hands and also suppressed the aforesaid vital and important fact, not entitled to have any discretionary order against the grant of registered of the prior used and most distinctive trade mark DANDI SALT/DANDI NAMAK of the applicant. The impugned notice of opposition so filed by suppression of facts, deserves to be dismissed/rejected, as not maintainable.
Learned senior advocate Mr. Joshi submitted that petitioner has suppressed material of facts in present petitions wherein Civil Suit has been filed by present petitioners before Civil Court, Jaipur being no. 176/2007, wherein same relief has been prayed and ultimately Honourable High Court of Rajasthan, Jaipur Bench has set aside such injunction order which was obtained by petitioners against present respondent no. 5. This facts have not been narrated or disclosed by present petitioners in present petitions. The copy of Civil Suit as referred above being no. 176/2007 has been placed on record before this Court which was filed on 20/12/2007 where prayer made in para 14 sub prayer 1 which relating to same subject matter against which an interim relief has been prayed by petitioners against respondent no. 5. This fact has not been disclosed by petitioners in present petitions.
He submitted that Opposition has been filed by petitioner on 9/3/2009 where page 34 has been referred by learned senior advocate Mr. Joshi and submitted that in an Opposition address of present petitioner is same as mentioned in present petition as well as in all notices which were sent by Dy. Registrar of Trade mark as there was no purshis or application preferred by petitioners to Dy. Registrar of trade mark in respect to change of address. Therefore, he submitted that presumption under Rule 15 is to be drawn that notice issued by Dy. Registrar of trade mark must have been served to present petitioners. At page 43, counter statement of respondent no. 5 address to Dy. Registrar of trade mark has been sent to present petitioners dated 26/8/2009, which letter of Dy. Registrar of trade mark has been received by petitioners. For that, there is no denial of page 42 dated 26/8/2009. The copy of counter statement sent to petitioners by Dy. Registrar of trade mark by letter dated 24/2/2010 on given address as mentioned in present petitions of petitioners. For that, contentions raised by learned advocate Mr. Tolia that said notice dated 24/2/2010 is not received by present petitioner but no envelop has been produced on record by petitioners. The affidavit of Shri Murlidhar Motiram Jeswani, Manager of respondent no. 5 Company sent to Dy. Registrar of Trade mark by letter dated 22/3/2010 by and letter dated 30/4/2010 page 105 of respondent no. 5 which is relevant therefore, quoted as under:
To, The Registrar of Trade Marks, The Trade Marks Registry, Ahmedabad.
Respected Sir, Subject : Opposition No.AMD-742087 by PACS Chemicals, Mumbai to Application No.1641653 in Class 30 in the name of M/s.Indo Brine Industries Ltd. Gandhidham (Kutch).
Reference: The notice No. OA-10721 dtd. 24.2.2010 issued u/s. 21(3) to the opponent to take action under Rule 50(1) of the Rules.
With reference to above, we have to state that pursuant to the notice of opposition on TM-5 being lodged by Pacs Chemicals, Mumbai as provided u/s. 21(1) of the Act against the Application No. 1641653 in Class-30, the Hon'ble Tribunal, vide notice dtd. 26.8.2009, directed to the applicant to file the Counter Statement on TM-6 dtd. 12.10.2009, the same has been taken on record.
That upon filing of the counter statement by the applicant, the Hon'ble Tribunal, as provided u/s. 21(3) of the Act, directed the opponent vide Notice No. OA-10721 dtd. 24.2.2010 to take the appropriate action as envisaged under Rule 50(1) of the Trade Marks Rules, 2002.
In view of the above, the opponent is required to file its evidence in support of its impugned notice of opposition within two months i.e. on or before 24.4.2010, however, the opponent has though received the copy of aforesaid notice with the copy of the Counter Statement, not filed evidence as envisaged under Rule 50(1) of the Rules and thereby the opponent has by its own conduct, abandoned its opposition.
Therefore, the necessary order as provided under Rule 50(2) of the Rules may kindly be issued at an early date and oblige.
Learned senior advocate Mr. Joshi submitted that contention in respect to not given reasonable opportunity of hearing by Dy. Registrar of trade mark to petitioners is prima facie not found to be correct because on each occasion notices have been sent to petitioners on same address, from which some of notices have been received by petitioners on same address and subsequently though it has been sent by Dy. Registrar on same address, but it has been found with an endorsement of left. Therefore, he submitted that principles of natural justice not violated. On the contrary, it has been followed because Dy. Registrar of trade mark has sent notice on each occasion to same address of petitioners and case of petitioners is not call for any interference.
Learned senior advocate Mr. Joshi submitted that according to contention raised by learned advocate Mr. Tolia that order, which has been passed by Deputy Registrar on trade mark dated 17/5/2010 is not received by petitioners. Therefore, an application was submitted for documents and certified copy of order, which has been received by petitioners on 21/7/2010 and affidavit in petitions affirm on 25/7/2010. The petitions were filed in Registry of this Court on 16/8/2010 and moved by petitioners on 30/8/2010, more than one month time has been left after receiving papers and order from Dy. Registrar of Trade mark.
Therefore, contention has been raised by learned advocate Mr. Tolia relying upon section 95 that Appellate authority can not pass any interim order before that condition mentioned in section 95 must have to be satisfied by petitioners which required to serve copy of appeals with all documents in support of plea for such interim order are furnished to parties, against whom such appeal is made or proposed to be made and an opportunity is given to such parties to be heard in matter. Therefore, this alternative remedy is not effective and efficacious which provided under provision of section 91 of Trade Marks Act.
Against that, learned senior advocate Mr. Joshi submitted that more than one month time has been spent without initiating any proceeding after receiving copy of order and documents from Dy. Registrar of trade mark dated 21/7/2010 and even affidavit has been affirmed on 25/7/2010, but matter has been filed in Registry of this Court on 16/8/2010. Thereafter, 14 days remained as it is and not moved upto 30/8/2010. So, there is a deliberate delay, which has not been explained by petitioners. Therefore, no interim relief can be granted in favour of present petitioners till appeal is preferred by petitioners because more than one month period has not been explained that why delay has been occurred in filing present petitions before this Court.
Learned senior advocate Mr. Joshi submitted that on 22/5/2010 public notice has been issued by respondent no. 5, page 124 which must have been brought to notice of petitioners or petitioners must have been aware about it but even subsequently also from 25/5/2010 approach to Dy. Registrar of Trade mark for certified copy of order and documents on 24/6/2010. At least more than one month period remained unexplained why immediately petitioners have not approached to Dy. Registrar of trade mark for getting certified copies of order and documents.
Learned senior advocate Mr. Joshi also submitted that petitioners are having another alternative remedy to approach same authority because of ex parte order with an application to set aside ex parte order which was passed in absence of present petitioners. For that, same authority is having jurisdiction and power to set aside ex parte order as per decision of Apex Court in case of Rabinder Sing Vs. Financial Commissioner, Co-operation, Punjab Ors reported in 2008 (7) SCC 663.
Learned senior advocate Mr. Joshi also raised contention before this Court that contention which has been raised by petitioners that notice is issued by Dy. Registrar of Trade mark not received by petitioner being disputed question of fact, which can not be decided by this Court while exercising power under Art. 226 of Constitution of India.
He submitted that in case of undisputed fact of violation of principles of natural justice, Court can exercise power under Art. 226 of Constitution of India. But he submitted that in case of present nature, it is disputed by respondent no. 5 that notice sent by Dy. Registrar of trade mark to address of present petitioners which is found to be correct then presumption under Rule 15 must have to be drawn against present petitioners that such notice must have to be received by petitioners when petitioners have filed opposition before Dy. Registrar of trade mark on 9/3/2009.
Learned senior advocate Mr. Joshi submitted that this Court can exercise extra ordinary power in case when petitioner is not having alternative effective efficacious statutory remedy. In this case principle of natural justice is not violated by Dy. Registrar of trade mark because notice is issued to present petitioners and objection has been filed by petitioners. Therefore, facts which has been stated by petitioners that notice is not received by petitioners being disputed question of facts. Ordinarily, this Court can not entertain petitions when disputed question of facts are involved.
In short his submission is that present petitions may not be entertained because petitioners are having two remedy either to file application before Deputy Registrar of trade mark to set aside ex parte order or to prefer appeal under section 91 and thereafter to file interim stay application under section 95, which can be considered by Appellate Authority after satisfying condition incorporated under section 95. The time lapse by petitioners, which apparently according to him deliberately and intentionally not immediately approach to this Court. Therefore, in such circumstances, no interim protection can be given to petitioner because conduct of petitioners is not found to be bona fide.
He also submitted that there is no question of any mala fide or fraud as alleged by learned advocate Mr. Tolia because there is no material produced on record which proved allegation of mala fide and fraud either against respondent no. 5 or against Deputy Registrar of trade mark. So in absence of material relating to fraud, which has been alleged by petitioner that contention can not be accepted by this Court which according to him, it is merely a vague allegation made by petitioners without any legal base on record. Therefore, his submission is to dismiss present petitions and not to entertain both petitions.
I have considered submissions made at length by learned Advocate Mr. Tolia and learned Senior Advocate Mr. Mihir Joshi for respective parties. I have also perused the documents on record produced by respective parties. As regards order under challenge passed by Deputy Registrar under section 21 of Trade Marks Act, 1999 in Interlocutory Application dated 17th May, 2010, question is whether petitioners are having alternative, effective, efficacious and statutory remedy or not. Section 91 provides for an appeals to appellate board. Any person aggrieved by an order or decision of Registrar under this Act or rules made thereunder may prefer an appeal to Appellate Board within three months from the date on which order or decision sought to be appealed against is communicated to such person preferring appeal and appellate board is also having power and jurisdiction to condone delay in case if appeal is preferred after expiry of period stipulated under sub section (1). Appeal is to be preferred by aggrieved person to appellate board within three months from the date on which order or decision sought to be appealed against is communicated to such person preferring appeal. Appeal is to be preferred in the proforma prescribed and shall be verified in the prescribed manner. Section 95 of Trade Marks Act, 1999 is relating to conditions as to making of interim orders which provides that notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force no interim order shall be made on, or in any proceedings relating to, an appeal unless copies of such appeal and of all documents in support of the plea for such interim order are furnished to the party against whom such appeal is made or proposed to be made; and opportunity is given to such party to be heard in the matter. Therefore, section 91 and 95 of the Trade Marks Act, 1999 are quoted as under:
91.
Appeals to Appellate Board.- (1)Any person aggrieved by an order or decision of the Registrar under this Act, or the rules made thereunder may prefer an appeal to the Appellate Board within three months from the date on which the order or decision sought to be appealed against is communicated to such person preferring the appeal.
(2) No appeal shall be admitted if it is preferred after the expiry of the period specified under sub section (1);
Provided that an appeal may be admitted after the expiry of the period specified therefor, if the appellant satisfies the Appellate Board that he had sufficient cause for not preferring the appeal within the specified period.
(3) An appeal to the Appellate Board shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by a copy of the order or decision appealed against and by such fees as may be prescribed.
95. Conditions as to making of interim orders.- Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force no interim order (whether b y way of injunction or stay or any other manner) shall be made on, or in any proceedings relating to, an appeal unless-
(a) copies of such appeal and of all documents in support of the plea for such interim order are furnished to the party against whom such appeal is made or proposed to be made; and
(b) opportunity is given to such party to be heard in the matter.
29. Rule 15 of Trade Marks Rules, 2002 is relevant. Therefore, same is quoted as under:
15.Service of documents.- (1) All applications, notices, statements, papers having representations affixed thereto, or other documents authorized or required by the Act or required by the Act or the rules to be made, served, left or sent, at or to the Trade Marks Registry or with or to the Registrar or any other person may be sent through the post by a prepaid letter.
(2) An application or document so sent shall be deemed to have been made, served, left or sent at the time when the letter containing the same would be delivered in the ordinary course of post.
(3) In providing such sending, it shall be sufficient to prove that the letter was properly addressed and put into the post.
(4) After the filing of an application at the Trade Marks Registry, any person while making any correspondence relating thereto shall furnish the following particulars namely:-
(a) the application number or numbers, if any;
(b) the date and place of filing;
(c) the appropriate class or classes, as the case may be, in relation to which the application is filed;
(4) an address for communication; and (5) the concerned agent's code, if any and the concerned Proprietor's code if allotted.
(5) The Registrar may, after informing the public in the Journal permit transmission of any document by facsimile (fax) of specified documents not requiring payment of a fee.
(6) The Registrar may after informing the public in the journal accept communications of a routine nature through E-mail not requiring the payment of a fee thereof.
Rule 50 thereof is also relevant, therefore, quoted as under:
50.
Evidence in support of opposition.-
(1) Within two months from services on him of a copy of the counter statement or within such further period not exceeding one month in the aggregate thereafter as the Registrar may on request allow, the opponent shall either leave with the Registrar, such evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition. He shall deliver to the applicant copies of any evidence that he leaves with the Registrar under this sub rule and intimate the Registrar in writing of such delivery.
(2) If an opponent takes no action under sub rule (1) within the time mentioned therein, he shall be deemed to have abandoned his opposition.
(3) An application for the extension of the period of one month mentioned in sub rule (1) shall be made in Form TM-56 accompanied by the prescribed fee before the expiry of the period of two months mentioned therein.
31. The contention raised by learned advocate Mr. Tolia that the notices issued by Registrar of Trade Marks have not been received by petitioner has been disputed by respondent no.5. Documents which have been annexed to both petitions suggests that notices have been issued to present petitioner on its correct address and some of the notices have been received and some have not been received as it has been found to have been returned with an endorsement left . Why this has been found to be left, for that, there is no answer given by petitioner. Envelopes which are produced on record mentions correct address of petitioner which has also been mentioned in present petition. It is necessary to note that the opposition against registration of impugned trade mark has been filed by present petitioner on 9th March, 2009 in Form TM-5 along with request Form TM-44. Thereafter, interlocutory application was filed by respondent no.5 on 22nd March, 2010 and copy thereof was sent to present petitioner by notice dated 30th March, 2010 for their comments but no comments have been submitted by petitioner before Deputy Registrar of Trade Marks, therefore, Deputy Registrar, Trade Marks passed an order in absence of petitioner because no one appeared on behalf of present petitioner before Deputy Registrar of Trade Marks. In such circumstances, immediately, it is open for petitioner to approach Deputy Registrar of Trade Marks by filing appropriate application to set aside ex parte order by pointing out factual aspects that no notice is received by petitioner but no such application has been made by petitioner immediately approaching Deputy Registrar of Trade Marks and petitioner waited for copies of order which has been received by petitioner on 21st July, 2010. In such circumstances, whether provisions of Code of Civil Procedure are applicable or not? In such circumstances of present nature, every authority is having incidental power to set aside its own order on the ground of violation of principles of natural justice. Even in absence of any express provisions, having regard to the principles of natural justice, courts have ample jurisdiction to set aside ex parte order, decree subject to statutory interdict. This view has been taken by Hon'ble Supreme Court in case of RABINDER SINGH VERSUS FINANCIAL COMMIISSIONER, COOPERATION PUNJAB AND OTHERS, reported in (2008) 7 SCC
663. Relevant discussion made in para 18, 19, 20, 21 and 22 is quoted as under:
18. The Tehsildar, in his judgment, has resorted to a peculiar logic.
According to her, the provisions of Review were attracted and not under Order IX Rule 13 for setting aside the ex-parte proceeding. Even if that be so, the ex-parte decree, in our opinion, could have been set aside. She could have exercised her power of review. The commentary on which reliance was placed, was made on the basis of a decision of the Financial Commissioner in Hukam Chand & ors. v. Malak Ram & ors. [(1932) 11 Lah LT 42]. The Lahore Law Times 42]. The said decision, with respect, does not lay down the correct law. All courts in a situation of this nature have the incidental power to set aside an ex parte order on the ground of violation of the principles of natural justice. We will deal with this aspect of the matter a little later.
19. A defendant in a suit has more than one remedy as regards setting aside of an ex-parte decree. He can file an application for setting aside the ex-parte decree; file a suit stating that service of notice was fraudulently suppressed; prefer an appeal and file an application for review.
20. In Bhanu Kumar Jain v. Archana Kumar and another [(2005) 1 SCC 787] this Court held :
"26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true."
21. What matters for exercise of jurisdiction is the source of power and not the failure to mention the correct provisions of law. Even in the absence of any express provision having regard to the principles of natural justice in such a proceeding, the courts will have ample jurisdiction to set aside an ex parte decree, subject of course to the statutory interdict.
22. In Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp SCC 420:1981 SCC (L&S) 309] this Court has held that an Industrial Tribunal has the requisite jurisdiction to recall an ex parte award. [See also Sangham Tape Co. v. Hans Raj (2005) 9 SCC 331 and Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. and Another (2005) 13 SCC 777]
33. Therefore, in view of above decision, Deputy Registrar of Trade Marks is having jurisdiction to set aside ex parte order if notices issued by him have not been received by petitioner which facts must have to be established by petitioner before Deputy Registrar of Trade Marks. Therefore, petitioner is having one immediate effective remedy to approach Deputy Registrar of Trade Marks by filing application to set aside ex parte order.
34. Second remedy available to petitioner is remedy to prefer appeal under section 91 of the Act where appellate board is having power to condone delay if appeal is preferred beyond the period of three months from the date of receiving ex parte order. Appellate board is also having power to grant interim order or interim relief under section 95 of the Act after giving reasonable opportunity of hearing to other side. Therefore, by statutory provisions itself, entire network has been provided to challenge order passed by Deputy Registrar of Trade Marks before Appellate Board which is considered to be effective efficacious and statutory remedy available to petitioner, therefore, in such circumstances, writ petition filed by the petitioner under Article 226 cannot be entertained by this court.
35. It is the contention of petitioner that the notices issued by Deputy Registrar of Trade Marks have not been received by petitioner including ex parte order passed by Deputy Registrar of Trade Marks dated 17th May, 2010. Looking to documents which are annexed to these petitions, it is undisputed question of fact because after filing opposition in prescribed form by petitioner, number of notices were sent to petitioner by Deputy Registrar of Trade Marks on correct official address of petitioner. How it has been returned back with an endorsement of 'left', there is no answer or explanation given by petitioner. Further, this aspect has been specifically disputed by respondent no. 5. Therefore, it being disputed question of fact whether notices issued by Deputy Registrar of Trade Marks have been received by petitioner or not, it can be considered only by Deputy Registrar of Trade Marks from original record. Such disputed question of fact, ordinarily, High Court cannot entertain writ petition when specific statutory remedy of appeal is available to petitioner. It is not a case of gross violation of principles of natural justice because once opposition has been filed by petitioner in prescribed form on 9th March, 2009 and then, it is duty of petitioner to remain vigilant and required to inquire from Deputy Registrar of Trade Marks as to what has happened to the matter after some time. Once date of hearing has been given and opposition was filed in prescribed proforma by petitioner, thereafter, it is duty of petitioner to remain vigilant in such an important proceedings. Whether Notice dated 24th February, 2010 sent to petitioner by Deputy Registrar of Trade Marks has been received by petitioner or not, for that, no envelope has been produced by petitioner on record of this matter. In such notice dated 24th February, 2010, specific direction has been issued to petitioner that counter statement has been filed by respondent no.5 and invited attention of petitioner to rule 50 of Trade Marks Rules, 2002 and no evidence in support of such opposition has been filed by petitioner and, then, Deputy Registrar of Trade Marks is left with no alternative but to consider rule 50 sub rule (2) of Trade Marks Rules, 2002. This crucial notice dated 24th February, 2010 has been sent to petitioner to his correct official address. For that, no document has been produced on record by petitioner that such notice has not been received by petitioner because envelope has not been produced on record. Therefore, this being disputed question of fact between the parties, in such circumstances, this court cannot entertain petition to decide disputed question of fact as per decision of Hon'ble apex court in case of SANJAY SITARAM KHEMKA V. STATE OF MAHARASHTRA & ORS.,AIR 2006 SC 2016. Relevant discussion made in para 9 and 10 of said judgment is quoted as under:
9. Having regard to the allegations and counter-allegations made by the parties before us, we are of the opinion that no relief can be granted to the Petitioner in this petition. The writ petition has rightly been held by the High Court to be involving disputed questions of fact. The petitioner has several causes of action wherefor he is required to pursue specific remedies provided therefor in law.
10.
A Writ Petition, as has rightly been pointed out by the High Court, for grant of the said reliefs, was not the remedy. A matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. As the High Court or this Court cannot, in view of the nature of the controversy as also the disputed questions of fact, go into the merit of the matter; evidently no relief can be granted to the Petitioner at this stage.
We are, therefore, of the opinion that the impugned judgment of the High Court does not contain any factual or legal error warranting interference by this Court in exercise of its jurisdiction under Article 136 of the Constitution.
Similar aspect has been examined by apex court in case of Orissa Agro. Industries Corporation Ltd. And others v. Bharati Industries and others, AIR 2006 SC 198.
Relevant discussion made by apex court in para 10 and 11 is quoted as under:
10 In a catena of cases this Court has held that where dispute revolves round questions of fact, the matter ought not be entertained under Article 226 of the Constitution. (See: State Bank of India and others v.
State Bank of India Canteen Employees' Union and others (1998(5) SCC
74), Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others, v. Sukamani Das (Smt.) and Another (1999) (7) SCC 298). 1999 AIR SCW 3383
11. In the instant case the High Court has itself observed that disputed questions of fact were involved and yet went on to give directions as if it was adjudicating the money claim in a suit. The course is clearly impermissible. (See: General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur U.P. v. Satrughan Nishad and others (2003 (8) SCC 639), Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Another (2003(4) SCC 317).
36. Therefore, considering aforesaid decisions, in present petition, disputed questions of fact are involved in respect to crucial point whether notices issued by Deputy Registrar of Trade Marks have been received by petitioner or not. No satisfactory explanation is given by petitioner before this court. Therefore, this Court cannot examine such disputed question of fact between the parties in writ proceeding.
In case of Gujarat Electricity Board versus MP Sinha or successor, Regional Provident Fund Commissioner, reported in 2000 (1) GLH 65, this Court observed as under in para 15 and 16:
15. The scope of judicial review was considered in latest pronouncement of the apex court in Apparel Export Promotion Council Vs. A.K. Chopra (1999) 1 SCC 759 decided on 20.1.1999 where it was held that the judicial review is not concerned with the correctness of the decision but is confined to the examination of the decision making process, namely, that the established principles of law and rules of natural justice and fairness have been followed or not. The court exercising powers of judicial review cannot substitute its opinion for that of the administrative authority.
16. In view of this decision also, the power of judicial review is not to be substitute with the power of appeal. Matters which have been agitated in the writ petition can be agitated before the appellate tribunal and the appeal, in the facts and circumstances of the case, is efficacious alternative remedy to the petition.
Since alternative remedy has not been exhausted and it could not be shown that it was a case of patent lack of jurisdiction or apparent excessive exercise of jurisdiction or any other matter touchingthe jurisdiction of the authority which passed the impugned order, it is not proper and desirable to entertain this writ petition. The alleged violation of the principles of natural justice is also not of such serious nature, especially in view of the fact that adequate opportunity of hearing was afforded to the parties hence it is not further desirable to entertain this writ petition. The power of judicial review in such matters cannot be substituted for the powers of appellate tribunal to entertain and decide the disputed questions of fact,hence also this writ petition cannot be entertained.
37. In case of Dinesh R. Shah versus Institute of Chartered Accountants of India reported in 2003 (2) GLH page 590, this aspect has been examined by this Court. Relevant observations made by this Court in para 7 of said judgment are quoted as under:
7. As noticed earlier, the disciplinary committee has submitted its report to the Council,and the Council has called upon the petitioner to submit written representation to enable it to decide the matter in accordance with the provisions of Sections 21(4) & 21(5) of the Act. The petitioner has already submitted his written explanation, but, the Council has not yet passed any final order, either under sub-section (4) or sub-section (5) of Section 21 of the Act. Even if any adverse order is passed by the Council under proviso to sub-section (4) of Section 21 or sub-section (5) of section 21, the Council shall have to make reference to the High Court and the reference, which may be made to the High Court, will have to be decided in the light of the provisions of sub-section (6) of Section 21 of the Act, as interpreted by the Supreme Court in the Institute of Chartered Accountants v.B.Mukharjea, reported in AIR 1958 SC 72. If any order adverse to the petitioner is passed under the main provisions of sub-section (4) of Section 21 of the Act, the petitioner will have a right to approach the High Court by filing an appeal as provided under Section 22-A of the Act. Thus, the points, which are sought to be agitated by the petitioner in instant petition, can very well be agitated before the Council. On consideration of material, the Council may exonerate the petitioner and if any punishment is imposed on the petitioner, he can very well urge the points raised in the petition before the High Court, either in reference or in appeal. The learned counsel for the petitioner has stated at the Bar that the petitioner does not propose to challenge the report of the disciplinary committee on merits in this petition and would agitate the same before the Council, if need arises i.e. if the petition is dismissed. Such a statement is made obviously for the reason that the matter is yet not decided on merits by the Council.
This Court is of the opinion that the petitioner cannot be permitted to adopt such a course. Permitting the petitioner to urge only some of the technical pleas and considering the same in a petition filed under Article 226 of the Constitution and at the same time, reserving liberty to the petitioner to agitate the points on merits before the Council, would not be conducive to justice delivery system. Such a course will result into delay in disposal of matter and would be contrary to the scheme envisaged by Article 226 read with the provisions of the Chartered Accountants Act, 1949. Neither Article 226 nor the provisions of the Act can be construed to mean that a member of the Institute is entitled to agitate technical points separately in a petition under Article 226 and urge the points on merits before the Council. If the points raised in instant petition are decided either way, the aggrieved party would, in all probability, file Letters Patent Appeal before the High Court and also Special Leave Petition before the Supreme Court, which would certainly result into delay in disposal of the matter. Powers under Article 226 cannot be exercised in a manner so as to cause delay in disposal of matter. It is true that the petition is pending in the Court since 1989 and it may not be proper for the Court to nonsuit the petitioner on the ground that the petitioner must show cause before the Council and avail of the remedy provided under the statute. However, it is to be noticed that the scheme of the Act is such that an aggrieved member of the Institute will have an opportunity before the High Court, either in reference or in appeal, as the case may be, to agitate all the points and the High Court has wide powers to pass appropriate orders to do complete justice between the parties. Under the circumstances, a question arises whether would it be prudent for the High Court to exercise powers at this stage under Article 226 of the Constitution. The Court finds that not only alternative effective statutory remedy is available under the Act, but, the petitioner can very well redress his grievance before the High Court itself, either in reference or in appeal and, therefore, it would not be sound exercise of discretion under Article 226 of the Constitution to interfere at this stage. Article 226 is not intended to circumvent statutory procedures. Hence, where statutory remedies are available, a petition under Article 226 should not be entertained, unless the statutory remedies are ill-suited to meet the demands of an extraordinary situation e.g. (i) where the very vires of the statute is in question, or (ii) where private or public wrongs are so inextricably mixed up and prevention of public injury and the vindication of public justice require that recourse may be had to Article 226, or (iii) the alternative remedy is not effective or adequate. The petitioner has failed to convince the Court that the scheme and procedure provided under the Act is either illusory or ill-suited or that the remedy is not effective and adequate. Entertaining the petition at this stage would amount to bypassing the whole procedure including the provisions of reference and/or appeal to the High Court made in a self contained Code, and such a course is not warranted in the facts of the case. Therefore, it is not necessary for the Court to decide the points urged on behalf of the petitioner on merits and accordingly, they are not decided. The petition, therefore, deserves to be disposed of, of course, with certain directions.
Recently, in case of Poonam versus Sumit Tanwar reported in (2010) 4 SCC 460, apex court has considered question of alternative remedy / exhaustion of remedies. Relevant observations made by apex court in para 13 of said judgment are quoted as under:
13.
It is settled legal proposition that the remedy of a person aggrieved by the decision of the competent judicial Tribunal is to approach for redress a superior Tribunal, if there is any, and that order cannot be circumvented by resorting to an application for a writ under Article 32 of the Constitution. Relief under Article 32 can be for enforcing a right conferred by Part III of the Constitution and only on the proof of infringement thereof. If by adjudication by a Court of competent jurisdiction, the right claimed has been negatived, a petition under Article 32 of the Constitution is not maintainable. It is not generally assumed that a judicial decision pronounced by a Court may violate the Fundamental Right of a party. Judicial orders passed by the Court in or in relation to proceeding pending before it are not amenable to be corrected by issuing a writ under Article 32 of the Constitution. (Vide Sahibzada Saiyed Muhammed Amirabbas Abbasi & Ors. Vs. the State of Madhya Bharat (now Madhya Pradesh) & Ors. AIR 1960 SC 768; Smt. Ujjam Bai Vs. State of Uttar Pradesh & Anr. AIR 1962 SC 1621; and Naresh Shridhar Mirajkar Vs. State of Maharashtra AIR 1967 SC 1)
39. In case of Rajeev Kumar and another versus Hemraj Singh Chauhan and others, reported in (2010) 4 SCC 554, apex court observed as under in para 9 to 13 and 16:
9. The Constitution Bench in Chandra Kumar [1 (1997)3 SCC 261:1997 SCC (L&S) 577] held that the power of the High Court under Articles 226 and 227 of the Constitution and of this Court under Article 32 of the Constitution is a part of the basic structure of our Constitution (See paragraphs 78 & 79, pages 301 and 302 of the report). The Constitution Bench also held that various Tribunals created under Articles 323-A and 323-B of the Constitution, will function as Court of first instance and are subject to the power of judicial review of the High Court under Articles 226 and 227 of the Constitution. The Constitution Bench also held that these Tribunals are empowered even to deal with constitutional questions and can also examine the vires of statutory legislation,except the vires of the legislation which creates the particular Tribunal.
10.
In paragraph 93, at page 309 of the report, the Constitution Bench specifically held: Chandra Kumar [1 (1997) 3 SCC 261 : 1997 SCC (L&S) 577] "...We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted...." (Emphasis added) The Constitution Bench explained the said statement of law by reiterating in the next sentence:
"93......By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.
11. On a proper reading of these two sentences, it is clear:
(a) The Tribunals will function as the only Court of first instance in respect of the areas of law for which they have been constituted.
(b) Even where any challenge is made to the vires of legislation, excepting the legislation under which Tribunal has been set up, in such cases also, litigants will not be able to directly approach the High Court `overlooking the jurisdiction of the Tribunal'.
12. The aforesaid propositions have been repeated again by the Constitution Bench in the penultimate paragraph 99 at page 311 of the report in the following words:
"99....The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned...."
13. In view of such repeated and authoritative pronouncement by the Constitution Bench of this Court, the approach made to the High Court for the first time by these appellants in respect of their service disputes over which C.A.T. has jurisdiction, is not legally sustainable. The Division Bench of the High Court, with great respect, fell into an error by allowing the appellants to treat the High Court as a Court of first instance in respect of their service disputes, for adjudication of which C.A.T. Has been constituted.
16. The principles laid down in the case of Chandra Kumar (supra) virtually embody a rule of law and in view of Article 141 of the Constitution the same is binding on the High Court. The High Court fell into an error by allowing the appellants to approach it in clear violation of the Constitution Bench judgment of this Court in Chandra Kumar [1(1997) 3 SCC 261:1997 SCC (L&S) 577]
40. In case of Raj Kumar Shivhare versus Assistant Director Directorate of Enforcement and another, (2010) 4 SCC 772, observed as under in para 31, 33, 34, 35, 36, 37, 38 and 39:
31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal Statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go bye by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating the aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction.
33.
Reference may be made to the Constitution Bench decision of this Court rendered in Thansingh Nathmal and others vs. The Superintendent of Taxes, Dhubri, reported in AIR 1964 SC 1419, which was also a decision in a fiscal law. Commenting on the exercise of wide jurisdiction of the High Court under Article 226, subject to self imposed limitation, this Court went on to explain:
"The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."
(Emphasis added) The decision in Thansingh (supra) is still holding the field.
34. Again in Titaghur Paper Mills Co. Ltd. and another vs. State of Orissa and another [AIR 1983 SC 603] in the background of taxation laws, a three judge Bench of this Court apart from reiterating the principle of exercise of writ jurisdiction with the time-honoured self imposed limitations, focused on another legal principle on right and remedies. In paragraph 11, at page 607 of the report, this Court laid down:
"It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford [1859] 6 C.B (NS) 336 at page 356 in the following passage:
"There are three classes of cases in which a liability may be established founded upon statute.... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it...the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd. [1919] AC 368 and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant and Co. [1935] 532 and Secretary of State v. Mask and Co. AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine".
35. In this case, liability of the appellant is not created under any common law principle but, it is clearly a statutory liability and for which the statutory remedy is an appeal under Section 35 of FEMA, subject to the limitations contained therein. A writ petition in the facts of this case is therefore clearly not maintainable.
36. Again another Constitution Bench of this Court in Mafatlal Industries Ltd. and others vs. Union of India and other [(1997) 5 SCC 536], speaking through Justice B.P. Jeevan Reddy, delivering the majority judgment, and dealing with a case of refund of Central Excise Duty held:
"So far as the jurisdiction of the High Court under Article 226 -- or for that matter, the jurisdiction of this Court under Article 32
-- is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment" (para 77 page 607 of the report).
In the concluding portion of the judgment it was further held:
"(x).....The power under Article 226 is conceived to serve the ends of law and not to transgress them"
37. In view of such consistent opinion of this Court over several decades we are constrained to hold that even if High Court had territorial jurisdiction it should not have entertained a writ petition which impugns an order of the Tribunal when such an order on a question of law,is appealable before the High Court under Section 35 of FEMA.
38. Learned counsel for the respondents relied on a judgment of this Court in Seth Chand Ratan vs. Pandit Durga Prasad (D) By Lrs. and Ors. - (2003) 5 SCC 399. Learned counsel relied on paragraph (13) of the said judgment which, inter alia, lays down the principle, namely, when a right or liability is created by a Statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. However, the aforesaid principle is subject to one exception, namely, where there is a complete lack of jurisdiction of the tribunal to take action or there has been a violation of rules of natural justice or where the tribunal acted under a provision of law which is declared ultra vires. In such cases, notwithstanding the existence of such a tribunal, the High Court can exercise its jurisdiction to grant relief.
39.
In the instant case none of the aforesaid situations are present. Therefore, principle laid down in the Ratan's case (supra) applies in the facts and circumstances of this case. If the appellant in this case is allowed to file a writ petition despite the existence of an efficacious remedy by way of appeal under Section 35 of FEMA this will enable him to defeat the provisions of the Statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fees or deposit of some amount of penalty or fulfillment of some other conditions for entertaining the appeal. (See para 13 at page 408 of the report). It is obvious that a writ court should not encourage the aforesaid trend of by-passing a statutory provision.
41. Learned Advocate Mr. Tolia has vehemently emphasized by relying upon section 95 of the Act that immediate interim relief is not available because appellate board must have to hear other side after supplying copy of appeal and interim relief application to other side and, therefore, it is very difficult for petitioner to get immediate interim order ex parte from appellate board. For that, learned Senior Advocate Mr. Joshi has emphasized negligence on the part of petitioner or lapse or deliberate delay or conduct on the part of petitioner as such which otherwise also disentitle petitioner from interim relief immediately either from this Court or from appellate board under section 95 of the Act. Order in question has been passed by Deputy Registrar of Trade Marks on 17.5.2010. This order has not been received by petitioner as per his contention, therefore, on 24.6.2010, documents and copy of order were demanded by petitioner from Registrar of Trade Marks after making payments. So, application was made on 24.6.2010 and documents including order in question were supplied to petitioner on 21.7.2010 and thereafter affidavit has been affirmed on 25.7.2010 and matter was filed in Registry of this Court on 16.8.2010 and thereafter, it came to be circulated before this Court for admission on 30.8.2010 and, therefore, considering these factual aspects of delay, which are not in dispute between the parties, mere ex parte order is not to be passed by Appellate Board as per conditions incorporated in section 95 of the Act, that cannot give right to petitioner to directly approach this Court by way of this writ petition under Article 226 of Constitution of India. This aspect has been examined by apex court in case of Secretary, Minor Irrigation and Rural Engineering Services, UP and others versus Sahngoo Ram Arya and another, 2002 SCC (L&S) 775. Relevant observations made in para 11 and 12 are quoted as under:
11. These appeals are preferred against the order made by the High Court of Judicature at Allahabad in Civil Misc. W.P. No.47130 of 2000 etc. on 1.2.2001. A Division Bench of the High Court of Allahabad by the impugned judgment has held that the petitioner in the said writ petitions has an alternate remedy by way of petitions before the U.P. Public Service Tribunal (the tribunal), and had permitted the writ petitioner therein to approach the tribunal and directed the tribunal to entertain any such petition to be filed by the writ petitioner without raising any objection as to limitation. There was a further direction to the tribunal to decide the matter expeditiously.
12. Mr. Sunil Gupta, learned counsel appearing for the petitioner, contended that the remedy before the tribunal under the U.P. Public Service Tribunal Act is wholly illusory inasmuch as the tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have relegated the petitioner to a fresh proceeding before the said tribunal. We do not agree with these arguments of the learned counsel. When the statute has provided for the constitution of a tribunal for adjudicating the disputes of a Government servant, the fact that the tribunal has no authority to grant an interim order is no ground to by-pass the said tribunal. In an appropriate case after entertaining the petitions by an aggrieved party if the tribunal declines an interim order on the ground that it has no such power then it is possible that such aggrieved party can seek remedy under Article 226 of the Constitution but that is no ground to by-pass the said tribunal in the first instance itself. Having perused the impugned order, we find no infirmity whatsoever in the said order and the High Court was justified in directing the petitioner to approach the tribunal.
In the said view of the matter, the appeals are dismissed. No costs.
42. Recently, apex court considered question of alternative remedy in case of State of UP & Anr. Versus UP Rajya Khanij Vikas Nigam SS & Ors., 2008 (9) SCALE page 1.
Relevant observations made by apex court in para 31 are quoted as under:
31. The learned counsel for the appellants contended that the High Court was wholly wrong in entertaining a petition under Article 226 of the Constitution and in not relegating the writ petitioners to avail of alternative remedy available under the Industrial Law. It was also submitted that disputed questions of fact were involved in the petition which could not be appropriately dealt with and decided in exercise of extraordinary jurisdiction by a writ court and on that ground also the Court ought to have directed the writ petitioners to approach an appropriate forum. Moreover, no action of retrenchment of employees had been taken and, as such, the writ petition was premature and not maintainable.
43. I have considered various decisions referred to and relied upon by learned Advocate Mr. Tolia for petitioner suggesting that case of petitioner is covered by exception as discussed by Hon'ble apex court in decisions which are relied upon by learned Advocate Mr.Tolia. Allegation of fraud being after thought having no legal base found from record. There is no specific allegation made against Deputy Registrar of Trade Marks about fraud and merely alleged some notices after submitting objection/opposition not received, that cannot be considered to be question of fraud in absence of any specific allegation. Merely, according to petitioner, case is covered by exception, then, it cannot become a matter of right to avoid / ignore alternative effective statutory remedy but such exception can be considered by Court in facts and circumstances of each case whether discretionary relief or jurisdiction and power can be exercised by Court under Article 226 of Constitution of India or not. So, discretion remains with Court to consider whether interference of this Court is necessary or not looking to special facts and circumstances of case and also to consider whether this case is having such peculiar facts and circumstances or not which would warrant exercise of extra ordinary power and jurisdiction inspite of availability of alternative equally efficacious statutory remedy to petitioner. Therefore, according to my humble opinion, remedy of writ is not a matter of right but it is based upon discretionary jurisdiction of this Court. Question of alleged violation of the principles of natural justice is also not of such a serious nature especially in view of fact that adequate opportunity of hearing was afforded to petitioner by Deputy Registrar of Trade Marks. Therefore, according to my opinion, decisions which have been referred to and relied upon by learned advocate Mr. Tolia are not applicable to special facts and circumstances of this case which require interference of this Court while exercising discretionary jurisdiction under Article 226 of Constitution of India.
44. In view of aforesaid decisions of apex court and of this court and also considering submissions made by both learned advocates as well as after perusing documents produced by petitioner which are annexed to petitions and also keeping in view availability of alternative effective efficacious and statutory remedy to petitioner to prefer appeal under section 91 and also pray for interim relief under section 95 of Trade Marks Act and/or also to file application for setting aside ex parte order before Deputy Registrar of Trade Marks and keeping in mind question of alleged violation of principles of natural justice is also not of such serious nature especially in view of the fact that adequate opportunity of hearing was afforded to petitioner and in response to that, opposition was filed by petitioner on 9th March, 2009 and thereafter petitioner remained absent and no evidence has been led in support of opposition as per rule 50 and, therefore, ultimately Deputy Registrar of Trade Marks has passed order in question, therefore, according to my opinion, in light of these disputed question of facts involved in the matter and alternative equally efficacious statutory remedy is available to petitioner to prefer appeal and appellate board is also having power to condone delay and also to pass interim order under section 95 of the Act, in such circumstances, direct writ petition cannot be entertained by this court being a self imposed restriction,bypassing statutory remedy. It is not case of petitioner that under section 21, Dy. Registrar of Trade Marks has no jurisdiction to pass such order dated 17th May, 2010. So, question of jurisdiction is not raised before this court. Therefore, according to my opinion, present nature of these petitions cannot be entertained by this court, therefore, both these petitions are not entertained by this court and are dismissed as petitioner has not made out any prima facie case for interim protection till appeal is preferred by petitioner as requested by learned advocate Mr. Tolia because there is deliberate delay on the part of petitioner while approaching this court against order passed by Deputy Registrar of Trade Marks dated 17th May, 2010 and, therefore, contentions raised by learned Advocate Mr. Tolia cannot be accepted. Accordingly there is no substance in these petitions and, therefore, these petitions are not entertained by this court and are therefore dismissed with no order as to costs.
45. It is made clear by this court that this court has decided only issue in light of availability of alternative equally efficacious and statutory remedy of appeal to petitioner, whether in such circumstances, petitions are to be entertained by this court or not. Except that, this court has not examined merits of the matter in both petitions. Therefore, no opinion has been expressed by this court in respect of merits of matter which has been kept open to be decided by appropriate forum in accordance with law.
46. Today, CAV judgment is pronounced by this Court in these petitions Special Civil Application NO. 10245 of 2010 and 10246 of 2010 in presence of learned advocate Mr. Tolia and Mr. YJ Trivedi for petitioners and learned Advocate Mr. YJ Jasani for respondents wherein arguments were concluded by learned advocates for respective parties on 30.8.2010 and both the matters were reserved for judgment by order dated 30.8.2010.
(H.K. Rathod,J.) Vyas/asma Top