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Judgment
Z.S. Negi, J
The appellant has preferred an appeal against the order dated 10.7.2007 passed by the Deputy Registrar of Trade Marks whereby he allowed the
opposition No. MAS- 195717 and refused the registration of trade mark under application No. 1284554 in class 5.
The appellant has filed the appeal beyond the period specified under Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act),
hence the present miscellaneous application seeking condonation of delay has been made out by the appellant. The appellant has averred that the
impugned order was communicated to its counsel on 17.7.2007 and the appeal should have been preferred on or before 17.10.2007. It is further
averred that the present appeal has been preferred 60 days beyond the period of limitation as there was a change in the management of the appellant
and therefore the appellant could not meet its counsel and could not give him instructions in time. Averment is also made that the appellant is having a
good case on merits and the delay in filing the appeal is neither wilful nor wanton and if the delay in filing of appeal is not condoned, the appellant
would be put to serious loss, hardship and injury, whereas, if delay is condoned in filing the appeal, no prejudice or hardship would be caused to the
respondent No. 1.
The respondent No. 1 filed its reply to the application for condonation of delay by submitting that the appellant has neither proved nor even provided
sufficient cause for not preferring the appeal within the specified period. A change in management of appellant is not a sufficient cause for delay in
filing the appeal especially when there is no proof or evidence provided by the appellant to substantiate its claim. It is submitted by the respondent No.
1 that the law is well settled that if an appeal is not filed within the specified period, each and every day's delay should be clearly explained and proved
with proper and reliable evidence. The provisions of Sub-section (2) of Section 91 of the Act expressly prohibits admission of an appeal filed after the
expiry of period of limitation specified under Sub-section (1) of Section 91 of the Act provided the appellant satisfies the Appellate Board that he had
sufficient cause for not preferring the appeal within the specified period but in the present case the appellant has not taken any required steps to
satisfy the Appellate Board that it had sufficient cause for not preferring the appeal in time. It is further submitted by the respondent No. 1 that it is
clear from the facts and circumstances mentioned by it in the reply to the application for condonation of delay that the appellant has acted malafide in
the matter and has suppressed material facts and evidence, therefore, the discretion of this Appellate Board should be exercised against the appellant
and the present application ought to be disallowed.
Learned Counsel for the appellant submitted that the appellant is one of the leading marketer engaged in the business of marketing pharmaceutical
and medicinal goods for the last several years and it has been honestly and continuously using the trade mark ACICLOFLEX since April, 2004 and as
such the said mark has acquired distinctive character and is capable of distinguishing its goods from those of the other traders. He submitted that the
appellant is having a good case on merits and that the trade mark of the appellant, which is the subject matter of the appeal for which condonation of
delay is sought, is one of the leading brands of the appellant. The learned Counsel submitted that due to change in the management of the appellant
company, there has been a delay in taking decision for preferring an appeal against the impugned order and consequently in giving instructions to the
advocate of the appellant to file the present appeal. He urged that the delay in filing the appeal may be condoned; otherwise the appellant would be put
to a serious loss, hardship and injury.
On the other hand, learned Counsel for the respondent No. 1 vehemently opposed the application for condonation of delay on several grounds.
Learned Counsel submitted that the bald statement made by the appellant that there was a change in the management of the appellant company is not
sufficient in the absence of any iota of evidence. Even the appellant has failed to explain the nature of change that took place in the management, the
chronological particulars of change and as to how the change, if any, has affected in, taking decision to file the appeal. Learned Counsel contended
that it does not appear that there was any wholesale change in the management and therefore the claim of change of management appears to be false
and concocted. To prove his contention, the learned Counsel drew our attention to the counter-statement signed and affidavit evidence affirmed by
Mr. S. Manikandan, Executive Director of the appellant company in the proceedings before the respondent No. 2 and the present appeal papers have
been signed by the same person as the Managing Director, which shows that Mr. S. Manikandan who was handling the matter before the Registrar is
now handling the matter before this Appellate Board and he would have been well aware of the developments with the Registrar and also of the order
passed by the and the limitation specified under the Act for preferring an appeal and, therefore, there is no scope to make any excuse for not filing the
appeal within the limitation period. Learned Counsel for the respondent No. 1 has cited several judicial pronouncements which he relied up on in
support of his contentions.
We have carefully heard the learned Counsel for both the parties and gone through the application and reply thereto. Now for condoning the delay,
it is to be seen as to whether the appellant has shown sufficient cause for not preferring the appeal, within the time specified under Sub-section (1) of
Section 91 of the Act, to the satisfaction of this Appellate Board. The Courts have held that the expression sufficient cause should receive liberal
construction to advance substantial justice where no negligence or inaction or want of bona fide is imputable to a party. Whether explanation furnished
would constitute sufficient cause or not will be dependent upon facts of each case and there cannot be straightjacket formula for accepting or
rejecting explanation furnished for the delay caused in taking steps. Before discussing the averments made in the application, it would 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 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 pass upon the parties either way.
Another judgment of Apex Court worth mentioning is N. Balakrishnan v. M. Krishnamurthy reported in wherein, Justice K.T. Thomas, speaking for
the Court, laid down the law by observing thus in paragraphs 10 to 14:
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 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
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 latches on the part of the applicant the court shall compensate the opposite party of his loss.
After having quoted the above principles as laid down by the Apex Court, we will consider in the light of these principles as to whether the
explanation for delay set out in the present case can constitute sufficient cause to condone the delay. The appellant has stated that the delay had
occasioned due to change in the management of the appellant company but no details or particulars have been given. There is no whisper as to the
nature of change, what amount of time took for such change and how the change has affected in taking decision for preferring appeal. Further, it is
found that Mr. S. Manikandan, Executive Director of the appellant had signed the Form TM-6, etc. on behalf of the opponent in the proceedings
before the respondent No. 2 and the he has signed the present application and appeal in the capacity of Managing Director of the appellant. If this
elevation of Executive Director to the post of Managing Director is termed as change in management, the same cannot be an acceptable as a change
in management. We find that the appellant has not been that vigilant enough in taking timely action in this case and has taken the matter in a casual
manner, but certainly this lapse on the part of the appellant is not enough to turn down its plea and shut the door against it. We are conscious that
refusal to condone the delay would result in foreclosing the appellant from putting forth its cause especially when stakes are high, ACICLOFLEX
mark being one of the leading brands of the appellant, and arguable issue raised by the appellant such as 'the other reasons given by the learned
Deputy Registrar is factually and legally incorrect'. The appellant's delay in approaching this Appellate Board can not be termed as deliberate as we
do not see any benefit derived by the appellant by its late approaching to this Appellate Board. There is no averment in the reply of the respondent No.
1 as to what is the benefit derived by the appellant by approaching late to this Appellate Board or it was a deliberate tactics to gain time. We are
unable to conclude that the explanation that delay was caused by the change in management smacks of mala fide on the part of the appellant. We
may not ignore that in company's important decision like filing of appeal or not is taken in the Board of Directors Meeting and having this in view Mr.
Manikandan was not competent to take decision on his own to prefer or not to prefer an appeal against the impugned order.
The respondent No. 1 has in the reply to the application simply denied the averment made in the application that no prejudice or hardship would be
caused to the respondent No. 1, if the delay in filing appeal is condoned. Even assuming that any right has accrued to the respondent No. 1 which will
suffer in case the delay is condoned and consequently the appeal is entertained beyond the period of limitation, we are of the opinion that the interest
of justice would be met by awarding cost to the respondent No. 1. Accordingly, we condone the delay and order the application on the condition that
the appellant shall pay a sum of 5,000 rupees by way of cost to the respondent No. 1, either directly or through the counsel, within 15 days from the
date of receipt of copy of this order and file the acknowledgement of amount of cost received, failing which the application shall stand dismissed.
On receipt of the acknowledgement of payment of cost from the appellant, the Registry is directed to take the appeal on record and process the
same in accordance with law.