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Judgment
Z.S. Neqi, J
The appellant has preferred an appeal against the order dated 27.8.2007 passed by the Deputy Registrar of Trade Marks whereby he allowed the
opposition No. MAS- 121100 and refused the registration of trade mark under application No. 931068B in class 5.
The appellant has filed the above appeal 54 days after the expiry of period of limitation specified under Sub-section (1) of Section 91 of the Trade
Marks Act, 1999 (hereinafter referred to as the Act) and hence the instant application for condonation of delay in filing the appeal. It is the case of the
appellant that the impugned order was communicated to its Attorneys on 31.8.2007 and the appeal was required to be filed on or before 30.11.2007.
The delay occasioned on account of shifting of appellant's legal department from one floor to another which exercise involved not only transfer of
voluminous papers and documents pertaining to India and various other countries but also organising/scheduling of legal compliances in various
matters. It is the further case of the appellant that during the scrutiny and review of statutory compliances, the appellant realised that the period to
prefer an appeal against the order dated 27.8.2007 had lapsed and thereafter the appellant's Attorneys were briefed, the grounds of appeal came to be
drawn and thereafter the appellant has immediately approached this Appellate Board with the present condonation of delay application. The delay was
not deliberate and it would not have occasioned had the shifting not taken place and in view of this the appellant ought not to be held liable or penalised
on account of such delay in filing the appeal. It is also the case of the appellant that the respondent No. 2 on 24.8.2007, without informing the next
date of hearing and without the knowledge and representation of the appellant, proceeded with the opposition and decided the matter in absentia of the
appellant and passed the impugned order refusing registration of the trade mark of the appellant. As a matter of fact the appellant has been not taken
on record by this Appellate Board, the appellant would have no other remedy and/or justice and would be prejudiced in a grave manner.
The respondent No. 1 has on 2.5.2008 filed its reply to the condonation to the delay application stating that the appellant has not made out any
justifiable ground for condonation of delay as a shifting from one floor to another floor in the same building does not stop the business of any company,
more so, if it pertains to some important matter. The respondent No. 1 contradicting the claim of the appellant that the impugned order was passed by
the respondent No. 2 in absentia of the appellant and by furnishing a copy of notice received by its Attorneys, has stated that notice of hearing was
issued by the Trade Marks Registry, Chennai dated 23.7.2007 as a copy of said notice was also marked to the then appellant's Attomey, M/s. Bala
Kumar Chandrasekharan & Associates. The respondent No. 1 has further stated that the appellant seemed to have deliberately with malafide
intention delayed filing of the present appeal to gain time to exhaust their inventory of the products under the impugned trade mark and the application
for condonation of delay is a dilatory tactic of the appellant and as such ought to be refused by this Appellate Board to discourage such practice in the
interest of equity and natural justice.
This application for condonation of delay came up before us for hearing when Mr. Vijay Anand. A., Advocate appeared on behalf of the appellant
and Ms. P.V. Rajeswari, Advocate appeared on behalf of the respondent No. 1.
The learned Counsel for the appellant submitted that the delay in preferring the appeal by the appellant has taken place because of shifting of legal
department of the appellant from one floor to another and the shifting involved not only transfer of voluminous legal documents and paper but also
scrutinising, reviewing of legal compliances, organising and scheduling of various matters. During the course of such scrutiny and review of legal
compliances, the appellant realised that the statutory period for preferring appeal against the impugned order passed by the respondent No. 2 has
expired and the appellant immediately briefed its Attorneys and the grounds of appeal were drawn up and thereafter the appellant has approached this
Appellate Board with the appeal. The immediate steps taken by the appellant after the knowledge of its lapse shows that the appellant was neither
negligent nor had any malafide on its part but this immediate action taken by the appellant shows that the delay was caused not due to deliberate
conduct of the appellant or inaction on its part. The learned Counsel relying up on the order of this Appellate Board in Kumar Dal Mills v. Bansi Lal
Aggarwal and Ruchi Soya Industries Limited v. Om Oil and Flour Mills Pvt. Ltd. and Ors. urged that the delay may be condoned and appeal may be
admitted.
The learned Counsel for the respondent No. 1 while opposing the instant application has submitted that the appellant has not made out any (sic)
some important statutory requirement and the period of delay of 54/55 days is unjustified for tine kind of excuse made by the appellant. Learned
Counsel emphatically denied being wrong and misleading the statement contained in paragraph 2 of the application as it is a matter of fact on record
that the notice dated 23.7.2007 for the hearing fixed for 24.8.2007 was issued by the Registry of Trade Marks. In support of her statement the learned
Counsel drew our attention to a copy of the said hearing notice filled by the respondent No. 1. She submitted that the appellant cannot be allowed to
state that no opportunity of being heard was given prior to the issue of the order dated 27.8.2007 passed by the respondent No. 2. As the delay was
due to dilatory tactic adopted by the appellant to gain time for exhausting inventory of the impugned mark, the instant application deserves to be
dismissed.
After having heard the counsel for either sides, we have to consider whether the explanation given by the appellant constitute sufficient cause for
not preferring appeal within the specified time. Sub-section (1) of Section 91 of the Act provide that an appeal against the order of the Registrar of
Trade Marks may be preferred within 3 months from the date of the impugned order is communicated. The provisions of Sub-section (2) of Section 91
of the Act expressly prohibits the admission of an appeal filed after the expiry of period of limitation specified under Sub-section (1) of that section and
the exception carved out there from provides that an appeal may be admitted after expiry of the period specified under Sub-section (1), if the appellant
satisfies the Appellate Board that he had sufficient cause for not preferring the appeal within the specified period.
Before we discuss the averments of applicant and submission of learned Counsel, 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.
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 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 pass upon the parties either way.
Another Judgment of the Apex Court which may be worthwhile to quote for our present purpose is in the case of N. Balakrishnan v. M.
Krishnamurthy. In that case there was a delay of 883 days in filing the application for setting aside the ex-parte decree. The trial Court condoned the
delay but in the Civil Revision Petition the learned Single Judge of the High Court set aside the order of the trial Court and dismissed the petition for
condonation of delay. The Hon'ble Supreme Court set aside the order of the High Court. Justice K.T. Thomas, speaking for the Court laid down the
law observing at paras 9 to 14 thus:
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 within a certain limit. Length of 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 uncondonable 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 revisional 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 findings even untrammelled by the conclusion of the lower court.
The reason for such a different stance is thus: The primer 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 see that parties do not resort to dilatory tactics, but seek their
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 (sic) 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 litium (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. and State of West Bengal v. The Administrator,
Howrah Municipality.
It must be remembered that in every case of delay there can be some lapse on the part of the 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 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 then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party
altogether. It must be borne in mind that he is a looser and he too would have incurred quiet 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 of his loss.
Now, we would come to the averments made in the application and submissions of the learned Counsel for the appellant. The appellant has stated
that the appeal could not be preferred because of shifting of the appellant's legal department from one floor to another and such shifting involved not
only transfer of voluminous documents but also involved scrutiny and review of statutory compliances required to be made and organising and
scheduling them for compliance and during the course of such scrutiny the present lapse came to the notice of the appellant and thereafter the
Attorney was briefed immediately. The appellant has failed to explain when the shifting of legal department began, when shifting completed, when the
lapse came to its notice and when the Attorney was briefed. Even there is no averment as to whether the impugned order was got mixed with other
documents or was consigned to the record. The appellant has not pleaded that there was no malafide or negligence on its part in not preferring the
appeal within the limitation period. The overall attitude of the appellant evidently has been very casual The averment made by the respondent No. 1 in
paragraph 11 of its reply that the appellant seems to have application is a dilatory tactic of the appellant also remains unrebutted during the course of
arguments. From the pleadings it appears that shifting is not the cause of delay but the shifting has caused to bring the lapse to the notice of the
appellant, which in other words means that the explanation given for delay itself is wrong in the absence of elaboration as shifting cannot be reason for
delay when the order to be appealed against was found either amongst the transferred or to be transferred documents. The ground made out by the
appellant that no opportunity of being heard was given to it by the respondent No. 2 before passing the impugned order is negatived by filing a copy of
hearing notice dated 23.7.2007 by the respondent and the genuineness of copy of the said hearing notice was not disputed during the course of
hearing. After careful consideration, we are of the considered view that the explanation contained in the application is not acceptable or do not
constitute sufficient cause for condoning the delay. The cases relied upon by the appellant are of no help to it as the facts are distinguishable.
In view of the above, the condonation of delay application being C.O.D. No. 03/2008 is dismissed. There shall be no order as to costs.