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Judgment
87 paragraphs · 1,879 wordsS. Usha, J
1 . The appeal is preferred against the order dated 20.4.2009 passed by the Deputy Registrar, Trade Marks on 20.4.2009 treating the application No.
832185 in Class 2 as abandoned and the opposition No.CAL-723347 abates under the provisions of the Trade Marks Act, 1999 (hereinafter referred
to as the Act).
The appellant herein filed an application to condone the delay of 82 days in filing the appeal. The impugned order was dated 20.4.2009. This order
was not communicated to the appellant company nor to their agent namely L.S. Davar & Co. The appellant had written to their agency for which they
received no reply. On 17. 08.2009 on enquiry in the Trade Marks Registry it came to know that the impugned order is dated 20.4.2009. On
18.08.2009, the appellant applied for and obtained the certified copy of the order on 14.9.2009. The appeal has therefore been filed within the 90 days
time and is within the limitation period.
3 . The 2nd respondent herein filed their counter to the condone delay application stating the facts of the case. The respondent stated that the
appellants had filed an application for registration of the trade mark ""CHHATA"" UNDER No. 832185 in Class 2. The same was opposed by the 2nd
respondent by filing a notice of opposition. The said notice of opposition was sent to the appellant by the Trade Marks Registry which was returned
with an endorsement ""left"". The Registrar therefore treated the application to have been abandoned by operation of Section 21(2) of the Act.
4 . As regards the condonation delay application the respondent had raised certain technical objections. There were no satisfactory valid and sufficient
reasons given for the delay. The 2nd respondent therefore prayed that the condonation application be dismissed.
5 . The matter was listed for hearing on 23.6.2011 at Kolkata. At the request of the Counsel for appellant the matter was adjourned. As both the
Counsel agreed for the matter being heard at Delhi, the matter was listed at Delhi.
6 . The Counsel for the appellant had filed M.P. No. 232/2011 for taking on record additional documents.
7 . We have heard Mr. Aniruddh Sharma, the learned Counsel for the appellant and Mr. Gaurav Arora, the learned Counsel for the respondent on
12.12.2011.
8 . The Counsel for the appellant relied on those documents which were filed along with M.P. No. 232/2011. He submitted that they had been
communicating to their agent, but had not received the correct status of the application. On enquiry in the Trade Marks Registry came to know of the
impugned order and therefore applied for a certified copy of the order. The instant appeal has therefore been filed within 90 days from the receipt of
the certified copy and it cannot be said to be a delay. The appellant relied on the judgment reported in 1998 (7) SCC 123 "" N. Balakrishnan, Appellant
Vs. M. Krishnamurthy, Respondent and submitted that there was sufficient reason for the delay if at all there was a delay.
The learned Counsel for the respondent vehemently opposed the application. The Counsel submitted that there was no valid reason for the delay.
The Counsel then objected to the filing of the documents in M.P. No. 232/2011 and submitted that those documents cannot be filed at this stage. The
Counsel also raised some technical objection as to how the person has sworn an affidavit without any resolution passed by the Company. The Counsel
relied on these judgments in support of the above objection
(i) 2011 (5) MLJ 842, State Bank of Travancore, Appellant Vs. M/s Kingston Computers (I) P. Ltd., Respondent
(ii) 2000 (1) ICC 663, Municipal Committee, Sirhind, Appellant Vs. Ishar Das, Respondents
(iii) 2002 (1) ISJ (Banking) 175, Topline Shoes Ltd., Petitioner Vs. Reserve Bank of India, Respondent
(iv) 1954 SCR 919, Kishore Chandra Singh Deo, Appellant Vs. Babu Ganesh Prasad Bhagat and others, Respondents
The Counsel then objected to the present Counsel appearing without the consent being obtained from the erstwhile Counsel and relied on the
judgment reported in AIR 1997 SC 1285, M. Poornachandran and another, Appellants Vs. State of T.N. and others, Respondents.
The Counsel further submitted that there has been a change of address in the year 2003 for which the appellants have taken necessary steps
before the Registrar of Companies for recording the same, whereas had not taken any steps before the Registrar, Trade Marks. The appellants have
thus committed a mistake.
12 . The Counsel then relied on the judgment reported in 1988 (2) Scale 1408, M/s. Madan and Co., Appellant Vs. Wazir Jaivir Chand, Respondent
and submitted that the notice of opposition sent to the appellant was returned with an endorsement ""left"", it is then said to be ""due service"".
1 3 . Documents filed to fill up any lacunae cannot be permitted was the other submission by the Counsel ""2011 (2) PLR 185"" Atma Singh and
another, Petitioners Vs. Bhupinderpal Singh and others, Respondents.
Negligence on the part of the Counsel or the employee causing delay cannot be condoned ?
(i ) 1988 Sim LJ 112, The United India Insurance Company, Petitioner Vs. Subhash Chander Gupta and others, Respondents
(ii) AIR 1986 Ori 212, National Insurance Co. Ltd., Petitioner Vs. Manoranjan Dash and another, Respondents
We have heard and considered the arguments of both the Counsel. We have gone through the pleadings and the documents.
In the instant case on hand, there is a delay of 82 days in filing the appeal. The delay if at all is said to be due to the reason that the impugned
order was not received was their main submission. It is worth to quote the observation of the Supreme Court in N. Balakrishnan, Appellant Vs. M.
Krishnamurthy, Respondent (cited supra) in a condonation of delay application -
Rules of limitation are not meant to destroy the rights 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. The law of limitation fixes a lifespan
for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time,
newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each
remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The 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 rights 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 W.B. v. 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 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, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the
opposite party altogether. It must be borne in mind that he is a loser and he too could have incurred quite 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.
As observed by the Apex Court, refusal to condone the delay will result in closing the case of a person who may have a case on merits. If no time
limit is given or specified, then there will be no end to any litigation. If the party gives reasons for the delay and if the reasons are acceptable, the delay
can be given. The reasons for the delay given by the appellant are not sufficient and cannot be accepted.
Normally, miscellaneous petitions are not entertained in a condonation of delay application, but, in this case, miscellaneous petition was filed to
receive documents to prove that there was no delay. Therefore, the same was received and allowed.
1 8 . On perusal of the documents filed along with the Miscellaneous Petition for receiving additional documents, it is seen that the appellants had been
communicating to their agent for information regarding the application for registration. The application for registration has been filed in the year 1998.
The appellants had written letters to their agent only in the year 2008 to know the status of the application. Annexure P-11 is the ROC Cash Counter
Receipt issued by the office of the Registrar of Companies dated 18.6.2003 for bringing on record the change of the company's address. In this
regard, the Counsel for the respondent had submitted that when there was a change of address, as per the rules it is for the appellant to have brought
it to the notice of the Registrar. Having not taken any steps the appellants cannot have any relief for their negligence. We find force in the
respondent's contention.
The Trade Marks Rules provide for an application to bring on record the change. It is for the appellant to have taken necessary steps for bringing
on record the change of address which change was in the year 2003. Having not taken any steps to inform the Registrar of the change in address, the
appellant cannot now shift the duty on the Registrar or the agent. The reasons for the delay cannot be accepted at this delayed stage. We do not find
any valid reason for condoning the delay. The respondents had cited few judgments, which we think is not necessary to be dealt with as it is regarding
the technical objections. Those objections are not gone into as on the merits of the case no valid or sufficient reason is given for the delay. We are
also of the view that when the application is to be dismissed the technical objection need not be gone into.
In view of above, the application to condone the delay is dismissed with no order as to costs. Miscellaneous Petition No. 232/2011 is allowed.