K.K. Talwar vs Jagdish Chand Gupta And Anr.

S. Jagadeesan, J

The appellant preferred this appeal against the order of the Assistant Registrar of Trade Marks dated 16.10.1996 dismissing the opposition of the

appellant DEL/8676 and allowing the Application No. 507626 in class 9 of Schedule I of the Trade and Merchandise Marks Act, 1958 (hereinafter

referred as the said Act) for registration of the trade mark ""PARKO"" in respect of electrical wires and cables.

The 1st respondent herein Shri Jagadish Chand Gupta trading as M/s Bentex Cable Industries applied for registration of the Mark ""PARKO"" under

application No. 507626 in respect of electric wires and cables in class 9. The said application was accepted and advertised in the Trade Marks Journal

No. 1073 dated 16.02.1994 at page 1328. The appellant herein filed the opposition on the ground that the impugned trade mark is violative of Sections

9, 11(a), 11(e), 12(1) and 18(1) of the said Act. The matter was set down for hearing on 02.04.1996. On the said day the counsel for the respondent

appeared. There was no representation on behalf of the appellant. Under the impugned order the Assistant Registrar of Trade Marks accepted the

contentions of the learned Counsel of the respondent and allowed their application for registration. Aggrieved by the same the appellant has filed the

Appeal in CM(M) 41/97/225/97 on the file of the High Court of Delhi, which stood transferred to this Appellate Board by virtue of Section 100 of the

Trade Marks Act, 1999 and numbered as TA/132/2003/TM/DEL.

The case was listed for hearing on 16.02.2006 in the sitting of the Board held at New Delhi. Learned Counsel Shri Shailen Bhatia appeared on

behalf of the appellant and learned Counsel Shri V.P. Ghiraiya appeared on behalf of the first respondent.

The learned Counsel for the appellant contended that after the formalities were over, the matter was listed for hearing on 02.04.1996. The

appellant's Counsel sent a letter seeking adjournment and the said letter was before the Assistant Registrar for consideration. Without considering the

request for adjournment the Assistant Registrar disposal of the matter 'ex-parte'. The appellant also filed an application for review and doubting the

jurisdiction of the Assistant Registrar for review, he filed an appeal. Subsequently, the review petition was withdrawn. The learned Judge of the High

Court of Delhi directed the counsel for the appellant appeared before the Registry of the Trade Marks, to file a fresh affidavit with regard to his

illness. The learned Counsel also filed the affidavit and to the said affidavit the respondent has not filed any objection. Hence, considering the nature of

the case and in the interest of the justice, it is necessary that the appellant must be given an opportunity to put forth his case before the Assistant

Registrar by setting aside the ex-parte order.

Though the learned Counsel for the respondent raised several objections in order respects, he contended that the copy of the affidavit filed by Shri

Kanad Dev, advocate of the appellant was not furnished to him and so he was totally at dark. Even assuming that the affidavit has been filed, the

same was not accompanied by a medical certificate. Similarly the request before the Assistant Registrar also was not with medical certificate and

hence the illness pleaded by the learned Counsel for the appellant cannot be accepted. Secondly, there is no merit in the appeal, since the appellant

failed to argue the matter on merits, except seeking for a remand.

We have carefully considered the above contentions of both the counsel. There is no dispute that the appellant's counsel sought for a month time

due to his illness. But the Assistant Registrar granted 2 weeks and listed the matter on 02.04.1996. On the date of hearing set in by the Assistant

Registrar there was a request on behalf of the learned Counsel for the appellant for adjournment on the ground of his illness. Without considering such

request, the Assistant Registrar proceeded to hear the matter. It seems before the Delhi High Court the same plea put-forth before us, was made.

The Hon'ble Mr. Justice S.N. Kapur directed the learned Counsel for the petitioner to file an affidavit by order dated 17.07.2001, pursuant to which

Shri Kanad Dev, advocate filed the affidavit before the Delhi High Court stating that he was in hospital on 20.02.1996 for operation of Right Side

Hernia and after the operation he was advised bed rest. He received the notice of hearing fixed for 18.03.1996 and he filed a TM 56 for adjournment.

Without adjourning the matter for a month the Assistant Registrar of Trade Marks fixed the date of hearing on 02.04.1996 and the counsel could not

appear. From these materials available on record, it is clear that the counsel for the appellant was not well and expressed his inability to appear before

the Assistant Registrar. The Assistant Registrar ought to have granted an adjournment. But without doing so he heard and disposed of the matter on

merits without giving an opportunity to the appellant herein. On this short ground we are of the view that the appeal has to be allowed and the order of

the Assistant Registrar to be set aside. Accordingly, the impugned order of the Assistant Registrar is set aside and the appeal is allowed. However,

with a cost to the respondent of Rs. 5000 and directed the appellant to pay the cost within one month from the date of receipt of this order. The matter

is remitted back to the Assistant Registrar for fresh disposal and the Assistant Registrar is directed to dispose of the matter without any delay in

accordance with law.