Cluett Peabody & Co. INC vs Super Threads (India) And Ors

K.N. Basha, J

1 . This petition is filed for seeking the relief of Condoning the Delay of 13 days in preferring the appeal challenging the order dated 12/4/2013 passed by the Registrar of Trade Marks, Chennai.

Ms.Pushpa Menon, the learned counsel for the petitioner submits that the impugned order dated 12/04/2013 was received by the learned counsel for the petitioner on 07/05/2013 and the petitioner also filed the relevant records to establish the said factor. It is contended that, if the date of limitation is computed from the same date, the appeal could have been filed on 07/08/2013. The learned counsel would contend that the petitioner is a foreign company and soon after the receipt of the order copy, the learned counsel for the petitioner communicated the same to the petitioner having their registered office at United States of America and thereafter they have consulted their Attorneys at United States. It is further submitted that there were further discussion, consultation and deliberation between the learned counsel for the petitioner in India and as well as their Attorneys at the Unites States. The learned counsel would submit that the said process consumed some time, which resulted in the delay of 13 days in preferring the appeal. It is contended that the delay is neither willful nor wanton but only due to the above said circumstances. The learned counsel would also produce a decision of the Bench in support of her contention reported in: 2006 (33) PTC 405 IPAB in Kumar Dal Mills Vs. Bansi La Aggarwal".

3 . Per Contra, the learned counsel appearing for the first respondent Mr. T.K. Ramkumar would contend that the first respondent has been subjected to a great hardship and harassment as he is fighting for the registration of their trade mark right from the year 1995. It is contended that the present petitioner has delayed the proceedings throughout by initiating one proceedings after another by preferring opposition, which resulted in remanding the matter for fresh consideration. The learned counsel would further contend that even the present appeal is preferred with a delay of 13 days without any merits and only with a view to protract the proceedings.

It is further contended that it is not the delay of 13 days, as the quantum of delay is not relevant and the Bench has to consider the reason for the said delay. The learned counsel would point out that the only reason assigned in this matter is to the effect that the petitioner is a foreign company and the delay occurred due to the consultation and discussion with their Attorneys at India and as well as in abroad and such reason is unacceptable in view of the long pending legal battle between the parties as the facts are well known to the petitioner and their respective counsel and there is no need for taking this much time for discussion and deliberation. Therefore, it is contended that the petitioner has not assigned any valid reason for condoning the delay.

In order to substantiate the contention, the learned counsel for the first respondent would also place reliance on the decision of the Bench in COD No. 4/2009 in SR No. 405/2009/PT/IPAB dated 13/6/2011 (Schering-Plough Ltd (A Swiss Company), Switzerland - Appellant Vs Assistant Controller of Patents & Designs, Government of India, Patent Office Intellectual Property Rights, Chennai - Respondents).

5 . We have given our careful consideration to the rival contentions put forward by either side and also pursued the COD petition and the grounds as well as the reply filed by the first respondent herein.

6 . The fact remains that the impugned order dated 12/04/2013 was received by the petitioner on 07/05/2013. As per the settled position of law we have to exclude the date on which the impugned order was received by the petitioner and include the date on which the appeal was preferred and if we compute the limitation on that basis we are of the view that the delay is for 12 days and not 13 days. Now coming to the reason assigned for the delay in this matter, it is seen that the specific and categorical statement made by the petitioner is that the delay is entirely due to the consultation, discussion and deliberation held between the petitioner and their respective Attorneys in India and in United States of America, as the petitioner-company is having their registered office at United States of America. It is quite natural for a foreign company to have their consultation with their foreign Attorneys on receipt of the impugned order and thereafter to get the opinion and to have further discussion with Indian Attorneys for the decision to prefer an appeal. It is also quite reasonable for the petitioner to get the grounds drafted by the Indian Attorneys and for further deliberation with their Attorneys in their own country and during the said process, the delay of 12 days could have very well occurred.

The learned counsel for the first respondent vehemently contended that the delay is a deliberate one on the basis that there was a long standing battle between the parties and the first respondent is fighting for the registration of their trade mark right from the year 1995 and as such the facts are well known to the parties and there is no need for further deliberation and discussion. It is pertinent to note that there may be change of counsel at different stages which would necessitate the consultation and deliberation. It is also seen that admittedly, the matter was agitated earlier and in that appeal, this Bench remanded the matter for a fresh consideration and it would have consumed some time and as such, the petitioner herein cannot be blamed for the pendency of the proceedings. The petitioner is having a statutory right to challenge the impugned order and the petitioner cannot be prevented from exercising their legal rights to challenge the impugned order on mere hyper technicalities namely the delay in preferring the appeal. It is also pertinent to state that there could not be any prejudice to be caused to the first respondent as they can very well counter the arguments of the petitioner on merits during the course of hearing of the appeal.

8 . In this matter, the learned counsel for the respondent relied the decision of this Bench dated 13/06/2011 in COD No. 4/2009 in SR. No. 405/2009/PT/IPAB. (Schering Plough Ltd (A Swiss Company), Switzerland - Appellant Vs Assistant Controller of Patents & Designs, Government of India, Patent Office Intellectual Property Rights, Chennai - Respondents).

9 . However, the Hon'ble Division Bench of the Madras High Court set aside the said decision of the Bench in a decision rendered on 08/12/2011 in W.P. No. 28033 of 2011 in Schering-Plough Ltd. Vs. 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 imitation 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. vs. Intellection Property Appellate Board through the Dy. Registrar and Ors. held as under:-

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.

28 . 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 Vs. Kuntal Kumari AIR 1996 SC 575 and State of West Bengal Vs. 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.

35 . 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 117 A(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."

The Hon'ble Apex Court in 1987 SCR (2) 387 in Collecto Land Acquisition, Anantnag & Anr. vs. 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."

12 . The Hon'ble Apex Court in AIR 1998 SC 3222 in N Balakrishnan Vs. 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 republicae 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 12 days in preferring the appeal by the petitioner is hereby condoned. Accordingly, the above said COD. No. 3/2014 in SR. No. 345/2013/TM/CH is allowed. The Registry is directed to number the appeal if the appeal is otherwise in order.