Anil Appalam And Chips Representative Right & Grants vs K.S. Raja And Anr.

This matter is posted today for the maintainability. It is pointed out by the Registry that there is a delay in one day to filing the Review Petition. It

was clarified by the learned counsel for the petitioner that the review was filed within the time on 16.08.2013, as new fact come to the knowledge of

the petitioner only on 25.07.2013 and as such there is no delay. Shri. S.P. Chockalingam, learned counsel representing the petitioner submits that by

way of abundant caution, the petitioner also filed Form-3 along with requisite fee and an application for condonation of delay. It is submitted that the

petitioner is entitled to file a petition seeking extension of time as per Rule 14(1) Intellectual Property Appellate Board (Procedure) Rules, 2003,

(hereinafter referred to as IPAB Rules). The learned counsel also submitted that the review petition is maintainable as per rule 23 and if there any

delay in filing such review petition, it is open to him to file the petition for extension of time under rule 14(1). It is submitted that there is a delay of only

one day and the same is neither willful nor wanted but only due to the circumstances that the new facts came to the knowledge of the petitioner only

on 25.07.2013 and as a result there is a delay.

We are carefully considered the submissions of the learned counsel for the petitioner and also perused the other materials available on record. At

the outset, it is to be stated that admittedly there is a delay of one day in filing the review petition. It is pertinent to note that the review petition is

maintainable as per Rule 23 of the IPAB Rules. It is seen that there is no separate provision for condonation of delay in preferring the review petition.

However, it is relevant to refer Rule 14 which reads hereunder.

Extension of time -

(1) If the Appellate Board is satisfied, on an application made to it in the prescribed Form 3 under these rules, that there is sufficient cause for

extending the time for doing any act prescribed under these rules (not being a time expressly provided for in the Trade Marks Act, 1999), whether the

time so specified has expired or not, it may, subject to such conditions as it may think fit to impose, extend the time and inform the parties accordingly.

(2) Nothing in sub-rule (1) shall be deemed to require the Appellate Board to hear the parties before disposing off an application for extension of time

and no appeal shall lie from any order of the Appellate Board under this rule.

Reading of the above said provision would make it clear that the application for seeking the relief of condonation of delay in filing the review petition

would come well within the provision of rule 14. As it is specifically stated in the said rule as per clause 1 that an application made to it in the

prescribed Form-3 under these rules that there is sufficient cause for extending time ""for doing any act"". Under the rule and as such we are of the

considered view that even the aggrieved person is entitled to file the petition to condone the delay in filing the review petition by invoking the provision

Rule 14(1) as extension of time would cover ""Condonation of delay in filing Review Petition"" also, therefore the ""present petition is maintainable.

The yet another factor to"" be borne-in-mind of this Board is that while granting the relief of Condonation of Delay under Rule 14., the Board before

disposing of an application need not hear the parties as per Rule 14(2) and as such we are of the view that notice need not be ordered to the

respondent. No. 1 and without hearing the respondent, the Board is well within the power to hear the application and pass the order in respect of

condonation of delay as per rule 14(2). Our view is also supported by the view of Division Bench of the Hon'ble Bombay High Court in W.P. No. 721

of 2008 dated 23rd June, 2008 Mapra Laboratories Pvt. Ltd. v. Walter Bushness Pvt. Ltd. & others held as hereunder.

Apart from that, sub-rule (2) of the Rule 14, of the Intellectual Property Appellate Board (Procedure) Rules, 2003, which deal with extension of

time, states that nothing in sub-rule (1) shall be deemed to require the Appellate Board to hear the parties before disposing of an application for

extension of time and no appeal shall lie from any order of the Appellate Board passed under this rule. Therefore, the Appellate Board can hear the

application for condonation of delay and/or extension of time without hearing the other side.

Therefore, it is suffice for this Board to find out whether the applicant has assigned valid reason and shown sufficient cause to condone the delay. As

far as the case on hand is concerned, it is stated that there is a delay of only one day and that too the said delay was solely due to the fact that the

petitioner came to know the new fact necessitating for filing the review application only on 25.07.2013 which resulted in delay of one day. Therefore,

we are of the considered view that petitioner has assigned valid reason and shown sufficient cause to condone the delay of one day in preferring the

review petition. Accordingly the delay of one day in filing the review petition is condoned. Registry is directed to number the review petition, if it is

otherwise in order.