A. Habeebur Rahman Sons vs S. Jaffer Mohideen And Ors

K.N. Basha, J

(168 of 2015)

1 . This petition is filed seeking to condone the delay of 72 days in filing the appeal and challenging the order of the second respondent herein in dismissing opposition filed by the appellant/petitioner herein.

2 . Mr.K.M. Aasim Sheazad, the learned counsel for the petitioner would submit that the petitioner herein had gone for a mini-pilgrimage (Umrah) along with his family to Makkah & Medina on 30th April, 2014 and returned only in the last week of May, 2014 and thereafter he was busy in attending to the admission and pending secretarial work as he was the Honorary Secretary of the New College, Chennai. The learned counsel would further submit that only thereafter in the month of August, 2014 he enquired with the erstwhile counsel relating to the status of their and opposition filed before the second respondent and ultimately came to know about the dismissal of their opposition by passing an order dated 20th February, 2014. The learned counsel would also submit that the impugned order was received only in the second week of May, 2014 and thereafter the petitioner preferred the appeal, which resulted in the delay of 72 days in filing the appeal.

The learned counsel would also submit that the delay is neither wanton nor willful but it is only due to the above said circumstances.

Mr. S. Balachandran, the learned counsel appearing for the first respondent would submit that the first respondent has filed counter affidavit raising objection for condoning the delay of 72 days in filing the petition on the ground that the mini pilgrimage would not have been taken place during the relevant period. It is further contended that the position of the Secretary is not full time job and that may not be the reason for condoning the delay. The learned counsel would submit the petitioner has not shown sufficient cause for condoning the delay and as such the petition has to be dismissed with costs.

We have carefully considered the submissions made by both sides and also perused the affidavit of the petitioner and the counter-affidavit filed by the first respondent.

The learned counsel appearing for the petitioner has clearly and categorically stated that the petitioner had undertaken the mini-pilgrimage (Umrah) during the month of April, 2014 and returned only in the last week of May, 2014 and further he being the Secretary and Correspondent of the New College, Chennai he was busy with the administrative work and other incidental work and the process relating to admission for the Academic year 2014-15. It is also contended by the learned counsel for the petitioner that apart from the above said two factors, a considerable amount of time was taken in cogently organizing and perusing the relevant documents pertaining to the instant appeal. The petitioner has verified the opposition filed before the second respondent and subsequently received the order copy and thereafter the petitioner has to discuss with their counsel by perusing the opposition and during the said process the delay was occurred in filing the appeal.

It is relevant to refer the decisions of the High Court and the Apex Court in respect of the interpretations "Sufficient Cause" while condoning the delay. The Division Bench of the Madras High Court in a decision rendered on 8.12.2011 in W.P.28033 of 2011 in Schering-Plough Ltd. v. Intellectual Property Appellate Board as held hereunder:--

"5. Prima facie we are of the view that the Appellate Board has not correctly appreciated the reasons for delay disclosed in the affidavit accompanying the delay petition. It was categorically stated in the affidavit filed in support of the delay petition that upon receipt of the order of the 2nd respondent the petitioner-company had to receive technical support from its experts. Further, the petitioner-company is a foreign company situated in Switzerland and requires time to brief their advocate in India on the technical information. It was further stated that the petitioner-company had done everything in their control to file the appeal against the order of the 2nd respondent, but because of the intervening circumstances the delay occurred, which was beyond their control. It was also stated that the petitioner company has a good case on merit and the interest of justice and fairness requires that the delay in filing the appeal be condoned and the appeal be heard on merits.

6 . Although the Appellate Board noticed the ratio decided by the Supreme Court in N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123 yet it has not correctly appreciated the law in favour of the appellant/writ petitioner while considering the application for condonation of delay.

It is well settled by the Supreme Court that there cannot be any hard and fast rule to laid down as to what constitutes sufficient cause. The expression "sufficient cause" should receive liberal construction. In the case of O.P. Kathpalia v. Lakhmir Singh, AIR 1984 SC 1744 a three-Judge Bench of the Supreme Court held that if the refusal to condone the delay result in grave mis-carriage of justice, it would be a ground to condone delay.

In another decision in the case of Collector, Land Acquisition v. Mst. Katiji, AIR 1987 SC 306 'Their Lordships observed:--

"The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy."

Similar view has been taken by the Supreme Court in a catena of decisions holding that t expression "sufficient cause" should be liberally construed. In the instant case, the Appellate Board has not correctly appreciated the law laid down by the Supreme Court. Hence, the impugned order needs interference."

The Hon'ble Delhi High Court rendered a decision dated 05/01/2012 in W.P. No. (C) 7640/2011 & C.M. No. 17304/2011 in Gilead Sciences Inc. v. Intellection Property Appellate Board through the Deputy Registrar and Others held as under:--

"27. The respondent has failed to satisfy me as to how it has been prejudiced due to the late filing of the appeal by the petitioner. By delaying the filing of its appeal, the petitioner has only lost time. Even if the petitioner is held entitled to grant of patent registration in respect of the application in question, the same has been delayed due to the petitioner's own conduct. On the other hand, the respondent No. 4 continues to enjoy the rights available to it, which it would have exercised had the appeal been preferred in time. Respondent No. 4 would be entitled to contest the said appeal on merits. There is no prejudice caused to or suffered by respondent No. 4 or any other person by the delayed filing of the appeal and it is not shown that the petitioner is guilty of deliberate delay in filing the appeal with any particular object in mind.

2 8 . The Supreme Court in N. Balakrishnan (supra) held that the rules of limitation are not meant to destroy the fights of parties. They are meant to see the parties do not resort to dilatory tactics but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Refusal to condone delay would result in foreclosing a suitor from putting forth his case. There is no presumption that the delay in approaching the court is always deliberate. The expression "sufficient cause" under Section 2 of the Limitation Act should receive a liberal construction so as to advance substantial justice (see Shakuntala Devi Jain v. Kuntal Kumari AIR 1996 SC 575 and State of West Bengal v. The Administrator Howrah Municipality AIR 1972 SC 749). There could be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the doors against him.

I may now deal with a submission of Dr. Singhvi that the Board cannot condone the delay beyond the period of three months, as, according to him, further period is not specified in the Rules. Section 117B of the Patents Act provides that:

The provisions of sub-sections (2) to (6) of section 84, section 87, section 92, section 95 and section 96 of the Trade Marks Act, 1999 (47 of 1999) shall apply to the Appellate Board in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Trade Marks Act, 1999.

Section 92 of the Trade Marks Act, 1999 states that the Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 but shall be guided by principles of natural justice and subject to the provisions of the Trade Marks Act and the rules made thereunder. The Appellate Board shall have the powers to regulate its own procedure including the fixing of places and the times of its hearings.

Rules 14 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 framed under the Trade Marks Act states that If the Appellate Board is satisfied that there is sufficient cause for extending the time for doing any act prescribed under the rules (not being a time expressly provided for in the Trade Marks Act, 1999), it may, subject to such conditions as may think fit to impose, extend the time and inform the parties accordingly. This power is exercised upon making of an application to the Appellate Board in the prescribed form. The procedure for preferring an appeal under the aforesaid rules is prescribed from Rule 3 onwards. Therefore, the Appellate Board is empowered to extend the time for preferring an appeal under Rule 14 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 framed under Section 92 of the Trade Marks Act.

3 5 . A reading of Section 117A(4)shows that the Board has the power to extend the time beyond three months. This is evident from the use of the words "or even such further time as the Appellate Board may, in accordance with the rules made by it allow". The submission of Dr. Singhvi that the period of limitation for preferring an appeal is three months and the Board cannot relax the same any further, therefore, cannot be accepted. A reading of Section 117A(4) read with Rule 14, as aforesaid, shows that there is no outer limit in respect of the period for which the Board may condone the delay. However, the delay can be condoned upon the Board being satisfied that sufficient cause for extending the time for preferring an appeal has been disclosed.

Even under Rule 16 of "The Intellectual Property Appellate Board (Patents Procedure) Rules, 2010" and Rule 3 of "The Patents (Appeals and Applications to the Intellectual Property Appellate Board) Rules 2011", the Board is empowered to condone the delay in cases disclosing sufficient cause therefor."

9 . The Hon'ble Apex Court in 1987 SCR (2) 387 in Collector Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors held hereunder:--

"2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and use of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3 . "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4 . When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5 . There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

1 0 . The Hon'ble Apex Court in AIR 1998 SC 3222 in N Balakrishnan v. M. Krishnamurthy held as under:--

"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter; acceptability of the explanation is the only criterion. sometimes delay of the shortest range may be uncontainable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in regional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, [1969] 1 SCR 1006 and State of West Bengal v. The Administrator, Howrah Municipality, [1972] 2 SCR 874a.

It must be remembered that in every case of delay there can be some lapse on the part of e litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time when the court should lean against acceptance of the explanation. While condoning delay the Court should nor forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."

The principles laid down by the Hon'ble Delhi High Court, Hon'ble Madras High Court and the Hon'ble Apex Court in the decisions cited Supra are squarely applicable to the issue involved in the instant case. It is now well settled that in a matter of condoning delay, "sufficient cause" should be construed liberally and the matters are to be decided on merits with the object to render substantial justice. We are of the considered view in the instant matter that the petitioner has not only assigned valid reasons but also shown sufficient cause to condone the delay.

In view of the above said reasons, the delay of 72 days in preferring the appeal by the petitioner is hereby condoned. Accordingly, the above said COD. NO. 5/2014 in SR. No. 371/2014/TM/CH is allowed. The Registry is directed to number the appeal if the appeal is otherwise in order.