Intellectual Property Appellate Board
Shri Raj Bahadur Gupta, Proprietor Of ... vs The Registrar Of Trade Marks, The ... on 16 November, 2006
ORDER
Z.S. Negi, Vice-Chairman
1. The appellants have preferred this appeal, through Shri Raj Bahadur Gupta, proprietor of M/s. National M.P. Jewellers, against the order dated 7.10.2004 passed by the Assistant Registrar of Trade Marks, Kolkata dismissing the Opposition No. CAL-60117 of the appellants and allowing the Application No. 678323 in class 14 of respondent No. 3 for registration of trade mark M.P. JEWELLERS'. Since the appeal has been preferred after expiry of period of limitation specified for preferring appeal under Sub-section (1) of Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act). This application has been filed to condone the delay in preferring the appeal.
2. Since the application on hand is for condoning the delay in filing the appeal, it is not necessary for us to traverse the merits of facts of the appeal. The point for consideration by us is whether there is sufficient cause for not preferring the appeal within the statutory period of limitation. For finding out this, it is necessary to look into the averments made in the application as to sufficiency of the cause of delay.
3. The appellant/applicant has made the following averments in the application:
1. That the Order passed by the learned Assistant Registrar of Trade Marks, Kolkata on 7th October 2004, which is bad in law.
2. That due to certain misrepresentation and suppression of facts by the applicant, the learned Assistant Registrar was erred in giving justified Order.
3. That we become the Aggrieved Party and would prefer an Appeal before your Hon'ble Board well within 7th January 2005 i.e. within prescribed period of 3 months from the date of Order.
4. That unfortunately I fell seriously sick since November, 2004 and had to admit myself in The Calcutta Medical Research Institute for immediate operation and total bed rest under medical supervision.
5. That due to my continuous sickness till the middle of January, 2005, I could not Contact my Trade Mark Attorney within the Appeal period i.e. till 7th January, 2005.
6. That in view of above, the Appellant respectfully prays this Hon'ble Board to condone the delay in filing the Appeal.
7. That the Appellant prays for the natural Justice and to give him an opportunity for filing this Appeal.
3. The respondent No. 3 filed its objection against the application through Shri Biplabankur Roychowdhury, a partner of respondent No. 3 opposing the application on the grounds that a brief illness of proprietor of appellant from 26th November to 29th November would not be sufficient cause and justifiable reason for condoning of delay in filing the appeal because of the fact that he had enough time before or after his illness to contact with his Trade Mark Attorney. It is further stated that the appellant has failed and neglected to file the appeal within limitation owing to deliberate and intentional latches and cannot, therefore, be condoned for such delay in filing the appeal. The application for condoning delay came up for hearing on 4th September, 2006 before the Circuit Bench at Kolkata. Learned Counsel for the applicant submitted that the order appealed against is exfacie wrong and there are good chances of appellants succeeding in the appeal, therefore, delay should be condoned. He argued the matter reiterating the averments made in the application. He submitted that he received today a copy of objection filed by the respondent No. 3 and he wish to file reply thereto. Learned Counsel for the respondent No. 3 argued that the delay should not be condoned on the ground of illness for 4-5 days period. The appellant could have availed the opportunity during whole of the December month. The learned Counsel for the applicant was directed to file reply within a week's time from 4.9.2006. Accordingly, the reply has been filed by the applicant.
4. Before discussing the averments of applicant it may be worthwhile to quote the following principle laid by the Apex Court in the case of Ramnath Sao @ Ramnath Sahu and Ors. v. Goverdhan Sao and Ors. :
11. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There can not be straightjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation, furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the court should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable point and facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pas upon the parties either way.
5. This Board in Koninklijke Philips Electronics NV v. Kay Kay Home Appliances Pvt. Ltd. and Anr. 2004 (29) PTC 601 (IPAB) also observed thus:" On the conspectus reading of the principles laid down in various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fide or attempt to hoodwink the court by the party concerned who has come forward with an application for condonation of delay, in such case, no indulgence should be shown by condoning the delay applied for. It is also quite clear to the fact that it is not the number of days of delay that matters, but the attitude of the party which caused delay. In other words, when the court finds the party who failed to approach the court within the time stipulated comes forward with an explanation for condoning the delay, the court, if satisfied with the delay occasioned not due to the deliberate conduct of the party, but, due to any other reason, then by sufficiently compensates the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered."
6. The appellant has given his sickness in November as reason for not filing appeal in time. The learned Counsel for respondent No. 3 has rightly pointed out that the appellant could avail of the opportunity in December but in view of the reply, to the objection of respondent No. 3, we do not agree with the learned Counsel for the respondent No. 3. It is stated in the reply that it is evident from the discharge certificate that the site of impaction was inflamed. He says that he was advised by the doctor not to exert throat which could likely to damage his throat. Though there is no prescription evidencing such advise, there is no reason to disbelieve him either. No prejudice that may be caused to the respondent No. 3 has been brought to our notice. No negligence or inaction or want of bona fide is found to be imputable to the appellant. We are, therefore, satisfied that the cause shown by the appellant constitute sufficient cause for not preferring the appeal within the time specified under Sub-section (1) of Section 91 of the Act.
7. In view of the above, the application being C.O.D. No. 1/2005 is allowed. The registry shall number the appeal. There shall be no order as to costs.