Munira Virani vs Registrar Of Trade Marks And Ors.

Manmohan Singh, J

By this order, we propose to decide the above-mentioned appeal filed under Section-91 of the Trade Marks Act against the impugned order dated 7.12.2017. The appeal was heard by us in view of orders dated 19.04.2018 by us.

The subject matter of appeal is pertaining to the trade mark application no. 1422577 in class 35 bearing the mark REGAL which was filed by the appellant on 20.02.2006 through its Attorneys viz. Makhija and Associates. The said trade mark application was advertised in the Trade Marks Journal No. 1372 dated 16th July, 2007 claiming user 1963.

It is a matter of record that in the year 2008, the appellants appointed M/s. Krislaw Consultants (herein after, 'the said earlier Attorneys") as its trade mark Attorneys.

The respondents filed a Notice of Opposition dated 14.2.2008 to the subject trade mark application which was served by the Registrar of Trade Marks on the appellant.

The appellant filed its counter statement within the prescribed time which was duly served by the Registrar of Trade Marks on the respondent Attorneys vide its letter bearing outward No. TOP/403 dated 11.9.2009.

In the said counter-statement, the appellants stated that all the communications relating to the said proceedings may be addressed to "Krislaw Consultants, Building No. 4, C/104, Shankeshwar Palms, Behind Model School, Kumbharkhanpada, Subash Road, Dombivili (W)-421 202".

The Registrar of Trade Marks served upon the respondents a copy of the appellants' counter-statement and called upon the respondents to file their evidence in support of opposition within a period of two months from the receipt of the said letter. A copy of the said letter was sent.

As per Rule 50 of the Trade Marks Rules, 2002 (hereinafter, the said "Rules"), the respondent was to file its evidence in support of opposition within two months i.e. on or before 14.11.2009. However, the respondent's Attorney filed an application for extension of time to file its evidence in support of opposition from 14.11.2009 to 14.12.2009, on Form TM-56. The said application for extension was filed by the respondent only on 16.11.2009 i.e. two days after the prescribed time to file the application for extension of time as provided in Rule 50(3) of the said Rules had expired as per the case of the appellants that the evidence under Rule 50 ought not to have taken on record.

The respondents filed affidavit of Jalaluddin Virjee dated 14th December, 2009 together with documentary evidence (pages 1 to 177) as evidence in support of opposition. The said letter along with its encloses was hand delivered to the Trade Marks Registry on 14th December, 2009.

It is the case of respondents that a copy of the said letter bearing no. 3396 dated 14th December, 2009 along with affidavit of Mr. Jalaluddin Virjee dated 14th December, 2009 was sent to appellants' above-mentioned address of correspondence viz. "Krislaw Consultants, Building No. 4, C/104, Shankeshwar Palms, Behind Model School, Kumbharkhanpada, Subash Road, Dombivili (W)-421202" by DTDC Courier Service.

The case of appellant is that no such copy of evidence and documents were received either by the appellants or its attorney/earlier attorney.

After the expiry of seven and half years, the respondents attorneys by its letter No. 890 dated 20th June, 2017 informed the Registrar that the respondents had filed their evidence in support of opposition but the appellants had not filed their evidence in support of application and requested the Registrar of Trade Marks to proceed with the matter as per the rules. It is stated that a copy of the said letter bearing No. 891 dated 20th June, 2017 was also sent by courier to Krislaw Consultants at their above-mentioned address by DTDC Courier Services. There was a denial on the part of the appellant having received the copy thereof.

It is evident from the record that there was complete silence on behalf of both parties (for further proceedings) for more than 7 years. No correspondence was exchanged between the parties or with the Registrar of Trade Marks. The matter was heard and impugned order was passed.

In the Impugned Order dated 7th December, 2017, the Registrar of Trade Marks inter-alia held that the respondents evidence in support of opposition was duly received by Krislaw Consultants in due course; and that the appellants and Krislaw Consultants had knowledge of filing of evidence in support of the opposition but they failed to take any steps to file evidence in support of application within the prescribed time. By the Impugned Order, the Registrar, after discussed the conduct of the appellants, refused to exercise his discretion in favour of the appellants and proceeded to place the matter for final hearing. Against the Impugned Order, the present appeal has been filed.

In our Order dated 28.03.2018 in para 3 - 20, we have mentioned the details of proceedings conducted therefore for certain period of time. The said paras are reproduced hereunder:-

a) The case of the appellant is that the appellant was not served the evidence filed under rule 50 by respondent No. 2 and therefore, the evidence could not have been filed without serving the copy.

b) It is stated by the appellant that through letter dated 13.09.2017 issued by the respondent No. 1 that the hearing was fixed on 12.10.2017.

c) On 7.10.2017, appellant filed affidavit of one Amol Ashok Owhal, admin executive of Krislaw Consultant, deposing that Krislaw Consultant never received respondents' evidence in support of opposition as well as their letter dated 20th June 2017.

d) On 5.11.2017, before the hearing of the above matter, the 2nd appellant, through Krislaw Consultants wrote a letter to the Learned Registrar of Trade Marks contending that the 2nd appellant never received a copy of the respondents' evidence in support of opposition.

e) The respondent No. 2 and 3 have filed an affidavit of service of Ms. Manali Vedpathak dated 26th October, 2017, deposing about service of evidence in support of opposition under rule 50 on Krislaw Consultants. The said respondents also filed affidavit of Mr. Nilesh Sonawane dated 26th October, 2017 proving service of respondents' letter dated 20th June, 2017 on Krislaw Consultants.

f) On 6.11.2017 2nd appellant filed 1st appellant's affidavit deposing that Krislaw Consultant never received respondent's evidence in support of opposition also appellants sought adjournment of the opposition proceedings scheduled on 07.11.2017. Adjournment was granted to the appellants and the matter was listed for hearing on 15.11.2017.

g) After hearing both the parties, the learned Registrar passed the impugned order which is the subject of present appeal who refused to take on record its evidence in support of application at the belated stage and listed the matter for final hearing on 22.12.2017.

h) On 15th December, 2017 the appellants filed a writ petition under Article 226 and 227 of Constitution of India in the Hon'ble Bombay High Court WPC(L) 3581/17 challenging the impugned order/note sheet dated 7th December, 2017. At the same time on 22nd December, 2017, the appellants filed an application seeking adjournment of the opposition proceedings, in view of the writ petition filed by them in the Hon'ble Bombay High Court. Adjournment was granted to the appellants and the matter was listed on 12.01.2018.

i) The said writ petition was disposed by the Hon'ble Court on 09.01.2018 by passing following order:-

"It is pointed out that the IPAB has been duly constituted and Shri Justice Manmohan Singh is appointed as the Chairman of the Board w.e.f. 1.1.2018.

In view of the availability of alternate remedy for redressal of the grievances, the learned counsel appearing for the petitioners, on instructions, seeks leave to withdraw the petition with liberty to avail of the alternate remedy of presenting appeal to IPAB under the Trade Marks Act, 1999 raising a challenge to the impugned order.

The writ petition is permitted to be withdrawn with liberty to the petitioners to present an appeal before the appropriate forum. The counsel appearing for the petitioner's state, on instructions, that the petitioners would approach the alternate forum and present appeal on or before 15.1.2018. In the meanwhile, the learned counsel appearing for respondent No. 2 states on instructions, that the proceedings pending before the concerned authority would stand suspended and would not be taken up for a period of four weeks from today. It would be open for the petitioner to apply for grant of interim relief by the alternate forum.

Writ petition is disposed of as withdrawn with liberty as aforesaid."

j) Thereafter the opposition hearing scheduled before the Registrar of Trade Marks on 12.01.18 was adjourned to 23.02.2018. The appellants filed an application seeking adjournment of the opposition hearing on 23rd February, 2018 in view of the above appeal filed by the appellants before the this IPAB.

k) When the Chairman and Technical Member(Trademarks) sitting in Delhi Jurisdiction hearing other matters, the present appellant requesting to hear the appeal and stay application on urgent basis as the appellants apprehend that no hearing in the opposition be conducted. As the schedule of Bombay jurisdiction was fixed on 5.3.2018, the counsel was requested that if any date is fixed by the respondent No. 1, he may approach us so that the stay application of the appellants be considered in Mumbai jurisdiction.

l) The hearing schedule of 5th March in Mumbai Jurisdiction was cancelled due to shortage of staff in Circuit Bench Sitting. The Appellate Board put the hearing on 27th and 28th March 2018 the present appeal as well as of many pending matters.

m) On 7th March, 2018 the learned Registrar listed the above matter for final hearing on 23rd March, 2018. On 21st March, 2018 the appellants file an application seeking adjournment of the opposition hearing.

n) On 23rd March, 2018, the advocate appearing on behalf of the applicants before the Registrar informed the registrar they have filed a request for adjournment of today's hearing as the appeal in the matter is coming up before the IPAB on 27.03.2018.

o) The Registrar disallowed the said request stating that the applicant has already been allowed two adjournment requests on 07.11.2017 and 23.02.2018 and in between twice the hearing has been adjourned as per the directions of the Hon'ble High Court of Bombay in W.P. (L) No. 3581 of 2017 and the matter was reserved for order.

p) The learned counsel for the appellants states that the matter was mentioned before the Division Bench on 23/03/2018 after reserving the order, however no notice was given to the counsel appearing on behalf of the respondent No. 2 & 3. Counsel for the appellants states that advocate on behalf of the Union of India, Ministry of Law, Mr. Paragviyas appeared before the Division Bench and it was agreed the final order should not be pronounced till the hearing on 27.03.2018 is conducted when the stay application is also listed.

q) The learned counsel for the appellant states that the said observation made orally were communicated to the respondent No. 1 to 3 as well as Prothonotary and Senior Motion Original Side, High Court Jurisdiction at Bombay.

r) Mr. W.S. Kane, learned counsel appears on behalf of the respondent No. 2 & 3 filed his vakalathnama on 27.03.2018 which is taken on record and the learned counsel submits that firstly at the time of mentioning, no notice was given and his client is not aware about any order if passed by Division Bench.

With the consent of the parties, the hearing date was preponed and thereafter, the appeal was heard by us on 19.04.2018. In nut-shell, the case of the respondents is that:-

i) The Registrar's impugned Order refusing to take on record the appellants' evidence was passed in exercise of his discretion after considering the relevant facts and documents on record and it is a settled principle of law that the Appellate Court should not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law.

ii) The Appellate Court cannot re-assess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material.

iii) The conclusion reached by the Registrar in the impugned Order is not only just possible on the basis of the documents on record but is the only conclusion that could be judicially reached.

iv) The Registrar has correctly disallowed the evidence of the appellant in disregard to the principles of law laid down by the Hon'ble Supreme Court or High Courts in India. The impugned Order is not in contravention of the judgement passed by the Hon'ble Madras High Court in Allied Blenders and Distillers Pvt. Ltd. v. IPAB or against any of the established principles of law alleged by the appellants.

v) Evidence in support of opposition properly addressed and it shall be deemed to have been served at the time when the same would be delivered in the ordinary course of post and the said document only needs to prove that the said documents was properly addressed and was put into post. Once the same is established, the sender discharges its burden of proving that the document has been duly served upon the addressee.

vi) The requirement of proving delivery of evidence under Rule 50 beyond reasonable doubt, is only a figment of appellants' imagination. In the present case, the respondents have proved beyond reasonable doubt that the evidence in support of opposition was delivered at the appellants' address of correspondence.

vii) Even the appellants have in the past availed courier services to communicate with the answering respondents' attorneys and with the Registrar of Trade Marks. The appellants erstwhile attorneys Krislaw Consultants have availed the services of Vichare Courier Agency to serve upon the respondents' attorney letter dated 12th October, 2017. Therefore, the appellant cannot now in the present case contend that service of documents by courier is not proper mode of service. The presumption goes in favour of the respondents. The appellants now cannot take the advantage of Rule 15 by saying that the Registrar of Trade Marks has transgressed his powers under Trade Marks Act, 1999.

viii) The appellants are needlessly harping over the issue that unless the evidence under Rule 50 is received by the appellant, it is not possible or the appellant to lead evidence. ix) Therefore, the appellants cannot contend that the impugned Order was passed in contravention of the principles of audi alteram partem.

x) The respondents submit that in the above-mentioned circumstances, it would be a travesty of justice if leave is granted to such dishonest applicant to lead evidence at such a belated stage. The respondents say and submit that the appellants cannot be now allowed to lead evidence on the basis of the well-established principle of Volenti non fit injuria.

xi) The respondents' deny that no presumption can be drawn by the Registrar because of non-denial of receipt of communication and evidence in the letter dated 5th October, 2017 for the reasons alleged or at all. The appellants contention that the Registrar would not have put the answering respondents to strict proof of service of the opponents' evidence on the appellants for the alleged reasons, is completely baseless. It is alleged that the appellants said contention misses the point that the Registrar finding that Krislaw Consultants received the evidence in support of opposition flows from the conjoint reading of affidavit of Ms. Manali Vedpathal and Mr. Nilesh Ganesh Sonawane, both dated 26th October, 2017, affidavit of Ms. Munira Virani dated 6th November, 2017, affidavit of Mr. Amol Ashok Owhal dated 7th November, 2017 and Krislaw Consultants' said letter dated 5th October, 2017.

xii) The respondents deny that the affidavit of Manali Vedpathak or of Nilesh Ganesh Sonawane do not prove the service on the appellants or on Krislaw Consultants as alleged or at all. As regards the affidavit of Ms. Manali Vedpathak dated 26th October, 2017 proving service of evidence in support of opposition on Krislaw Consultants, the appellants have stated that Annexure "2" of the said affidavit shows that the document was not properly addressed.

xiii) With reference to the appellants' contention that the delivery report is not available with the answering respondents, the respondents say and submit that as a matter of policy DTDC Courier Service does not keep details of a consignments six months after their booking date. It was therefore not possible for the respondents to furnish a delivery report of the said packet. However, as against this, the said affidavit of Ms. Manali Vedpathak clearly records that the said packet was properly addressed to Krislaw Consultants; that the said packet was put into post via prepaid mode viz. DTDC Courier; that the said packet was not returned as undelivered by the said DTDC Courier; and that Krislaw Consultants is deemed to have been served with the said packet containing the said letter No. 3396 dated 14th December, 2009 and affidavit of 3rd respondent dated 14th December, 2009 in the above matter. The respondents submit that the letter No. 3396 dated 14th December, 2009, addressed to Krislaw Consultants, the entry in the Outward Register, the Consignment Note issued by DTDC Courier Services bearing the name Krislaw Consultants and the fact that the same was not returned undelivered, all establish beyond doubt that Krislaw Consultants was served with the answering respondents evidence in support of opposition.

It is denied by the appellant that respondents vide their attorney's letter no. 3395 dated 14th December, 2009, addressed to the Registrar of Trade Marks, Trade Marks Registry, Mumbai-400 037 had received the copy of an affidavit of Jalaluddin Virjee dated 14th December, 2009 together with documentary evidence (pages 1 to 177) to the appellants attorney by way of evidence in support of the opposition or it was delivered by hand. The appellants deny the existence and contents of the alleged letter No. 3395 dated 14th December, 2009 in their record.

The contents of affidavit of Manali Vedpathak dated 26th October, 2017 along with annexures thereto filed in the above opposition proceedings, allegedly claiming to prove service of the said letter No. 3396 dated 14th December, 2009 are disputed and denied by the appellants.

It is specifically alleged that no evidence in support of opposition has been received by the appellants till date, the time period for the appellants to file their evidence in support of the above application has not triggered yet in terms of Rule 46 of Trademark Rules, 2017 (erstwhile Rule 51 under the Trademark Rules, 2000). The appellants deny that they have not bothered to check the status of their application for a period of nine years since the filing of their counter-statement in the year 2008 as alleged by the respondents.

It is stated by the appellant that once the counter-statement has been filed by the applicant for a Trademark, thereafter, the statutory obligation and onus to file evidence in support of opposition (if the opponent wishes to file), is upon the opponent (Respondent) and the requirement to file any evidence in support of the application arises only thereafter.

It is stated that the appellants are not aware and do not have personal knowledge of the respondents' letter No. 890 dated 20th June, 2017 along with the alleged annexures thereto, purportedly addressed to the Registrar (Respondent No. 1).

It is denied by the appellant that respondents informed the Registrar that they had filed their evidence in support of opposition but the appellants had not filed their evidence in support of application and allegedly requested the Registrar of Trade Marks to proceed with the matter as per rules.

The appellants even deny the existence, service and contents of a purported letter bearing No. 891 dated 20th June, 2017 being sent by courier to Krislaw Consultants at their above-mentioned address by DTDC Courier Services as alleged by the respondents. The appellants also deny the existence, service and contents of affidavit of Nilesh Ganesh Sonawane dated 26th October, 2017 along with all the annexures thereto marked as Exhibit-2 allegedly proving the service of the said letter No. 891 dated 20th June, 2017. The appellants deny the existence and contents of Exhibit-2 i.e. affidavit of Nilesh Ganesh Sonawane dated 26th October, 2017 along with all the annexures thereto.

The appellants state that the Board in exercise of its jurisdiction under Section 91 of the Trademarks Act, 1999 is empowered to examine the illegalities and abuse of discretion in the impugned judgement and in the said exercise, nothing bars the Appellate Board/Tribunal from arriving at a different conclusion with the law since valuable rights are involved and there was no logic of the respondent as why the appellants would not file the evidence in its own application.

It cannot be denied the appellants is to file their evidence in support of application and its time shall trigger only after the evidence in support of opposition has been delivered and received by the appellants. In the present case, the very fact of service/delivery/receipt of the evidence in support of opposition by the respondents on the appellants is in dispute. If there is no service of evidence upon the appellants then there is no force that the appellants have not filed their evidence for 8 years as the time of filing evidence would not be trigged if copy of evidence in support of opposition is served. We are also clear in our mind that if there is a valid service of evidence and cogent evidence is available on record, it may be difficult to extend long period of time.

Under the Code of Civil Procedure, 1908 only recognizes service of summons by 'Courier' services which are duly recognized by the respective High Courts and not any courier. Therefore, while the amended CPC to incorporate 'Courier' as recognized by the respective High Court, within its definition, the Legislature did not do so in respect of Trademark Act. When a statute mandates a particular thing to be done in a particular manner, the same has to be done as prescribed in the statute, more so, when the same affects the rights and interests of the parties concerned. The appellants says that a presumption under Rule 15 is not available to the respondents and that the Registrar has wrongly recognized 'courier' as a recognize mode for drawing presumption under Rule 15, has read into the provisions of the statute without having any power/(s) under the Constitution of India or any other law in force to do so. Large number of decisions have been referred on behalf of both parties in support of their submissions.

In the Trade Mark Act, there is no provision which may direct to the parties to serve the documents through recognized courier. The advocates and attorneys are following the practice to send the documents by couriers. The said practice is being followed for the last many years.

The division bench of Hon'ble High Court of Kerala has distinguished service via registered post with service via private courier in the matter of K.V. Joseph & Sons and etc. v. Surya Constructions & Ors. MANU/KE/0382/2004 : AIR 2005 Ker 159. In the said matter, the court has held and acknowledged the importance of using Registered Post over a Private Courier service. The court has acknowledged Registered Post as a mode of service which is recognized by various statutes and authorized/governed by Central Government Agency which is governed by statutory rules and regulations. The Hon'ble Court has opined that the same also has statutory recognition under Section 27 of the General Clauses Act, 1897. In the said case, the court has held that there is qualitative difference between the said two modes of service. The observations of the court with respect to the qualitative differences can be seen hereinbelow:-

Points of difference between Registered Post and Courier

Sr. No.

Basis of Difference

Registered Post

Courier

1.

Susceptibility to manipulation

Registered Post receives its reliability from Sec. 114 of Indian Evidence Act and Sec. 27 of the General Clauses Act as an official act being done in a regular manner.

If responsible persons are sent for delivery of contents, there can be a manipulation of date, time and manner of receipt or other such calamities can arise.

2.

Governance

Postal Department is a Central Government agency which is governed by statutory rules and regulations.

They are not controlled by any governmental authority.

3.

Process

When an article is delivered to the Post Office, it remains with it unless it is delivered to the addressee or returned to the sender. If the article is refused by the addressee, an endorsement is made by the Postman raising the presumption that an attempt to deliver was made but the addressee refused to accept the article.

A private courier service does not have such a predefined process which is governed by Post Office Rules and Regulations and can leave a scope for any person to intermeddle with the article.

4.

Presumption

Taking into consideration, the manner in which the post office deals with the registered letter, the endorsement on a returned unopened envelope of refusal raises a presumption that an attempt was made to deliver the notice to the addressee and he refused to sign the receipt.

The presumption of delivery which arises under Section 27 of General Clauses Act is in such cases strengthened by the presumption which rises under Section 114 of the Indian Evidence Act. The presumption arising under Section 114 relates to an official act being done in a regular manner. As we have already indicated, several statutes have recognized the service of notice by registered post is safe and sure mode of service.

Nil

The appellants counsel argued that a cursory reading of the last paragraph of page 12 of the impugned Order makes it clear that the Registrar was wrongly hold that the appellant received the answering respondents evidence in support of opposition; and that the appellants failed to take steps to file evidence in support of the application within the prescribed time after receiving copy of the evidence in support of opposition and even after receiving copy of the evidence in support of opposition and even after receiving letter dated 20th June, 2017. It was submitted by the appellant that the said impugned finding alongwith other findings in the impugned order sheet are a subject matter of challenge in the instant appeal herein. The appellants' evidence in support of application is entitled to be taken on record in the interest of justice or/and having regard to the principle of audi alteram partem.

The appellants specifically denied the receipt of letter dated 26th October, 2017 along with affidavits of Manali Vedpathak and Nilesh Ganesh Sonawane, both dated 26th October, 2017 by DTDC courier as alleged or at all. The appellants deny the existence and contents of any Consignment Note or Delivery Report from DTDC Courier Services in this behalf. It was also denied that the affidavit of Manali Vedpathak or of Nilesh Ganesh Sonawane proves the service on the appellants or on Krislaw Consultants as alleged or at all. The appellants reiterate that Annexure "2" of the said alleged affidavit would show that the purported document was not properly addressed. The appellants are not aware and hence, Outward Register maintained by the respondents attorneys and that the entries made therein only reflect the name of the addressee, the place where the delivery is to take place, the subject of the matter and the mode of delivery i.e. "C" stands for Courier and "H/H.D." stands for Hand or Hand Delivery. Even otherwise the same do not prove the service of the documents.

Having gone through the pleadings and rival submissions of the party, the main issue involved in the present case is as to whether the applicant has received the evidence which was filed by way of affidavit dated 14.12.2009 of Mr. Jalaluddin Virjee together with the documentary evidence. There are two versions available on record on behalf of both the parties. The first one is the appellants that copy of the same has not been received and once the copy is not received, the question of running the time prescribed under the rules does not arise. The other second version is of the respondents who state that the copy was duly sent by courier at the correct address. Courier Receipt has also been filed.

It is argued on behalf of respondent that since the appellant has failed to produce the evidence for the last more than 8 years, therefore, the denial on the part of the appellant is after thought and explanation given by them cannot be accepted in a way depositions against the depositions. Both the parties have filed the affidavits strict to their stand.

It is admitted position that the appellant has claimed the user of the trade mark 'Regal' since 1963. The valuable rights of the appellant are involved. In case of doubtful case (as to evidence is received or not) if the evidence is not taken on record, the averment made by the respondent in the notice of opposition and by affidavit of Mr. Jalaluddin Virjee would go unrebutted and the case of the appellant would be prejudiced on merit of their application. The Registrar of Trade Marks has even refused to accept the evidence of the appellant as additional evidence, despite of one of the prayer made in the interlocutory petition.

It is also a matter of record that there is a complete silence on behalf of both the parties after filing the evidence by the respondents in 2009. No date of hearing was fixed for more than seven years if the evidence on behalf of appellant was not filed. There is also no communications on behalf of the appellant with the respondents or Trade Marks Registry exchanged.

It is also a matter of fact that the appellant's application is pending since 20.02.2006 and the same was opposed by the respondent in 2007. The respondent who filed a suit for infringement against the appellant being Suit No. 630/2017 (commercial suit) before the Hon'ble Bombay High Court against the appellants wherein an ad-interim relief was sought and the prayer was not allowed. The suit as well as the interim application is still pending.

There is a force in the submission of learned counsel for the appellants that in case the evidence is not taken on record and the application for registration of the trade mark 'Regal' is rejected due to non-filing of evidence, the case of the appellant would be pre-judiced before the Civil Court.

In the present case, the courier receipt produced by the respondent does not contain the full address of the attorney. The Tracking Report of courier is not available on record so as rightly mentioned by the counsel for the respondents that the same cannot be available after the expiry of six months.

There is also a controversy between the parties wherein the respondent counsel state that in June, 2017 when the letter was issued to the Registrar of Trade Marks intimating that no evidence has been filed by the appellant, therefore, the matter will be decided accordingly and there was no denial on behalf of the appellant who could have filed the evidence immediately. The appellant has also denied the receipt of the said receipt of the letter, however, for the sake of argument, the said letter is received by the appellant, but it does not resolve the controversy between the parties because the thrust of the main controversy is larger one raised by the respondents who state that the evidence was sent to the appellant branch in December, 2009. The appellants as their own filed the evidence by way of affidavit of Mrs. Munira Virani under Rule 51. But the said evidence has not been dealt by the appellant evidence filed by the respondents under Rule 50. Counsel for appellants stated that since no copy of affidavit and documents are served, therefore, the question of dealing with the evidence of the respondents does not arise, otherwise why the appellants would not have filed the evidence if the copies are served and which party will take risk not to file the evidence of user of fifty five years.

The appellant has also filed the Interlocutory Petition dated 14.11.2017 seeking various relief including that at the best the evidence as an additional evidences, however, none of the prayers made by the appellant in the Interlocutory Petition was considered.

It is stated by the appellant that the appellant has filed the evidence by way of affidavit dated 4th September, 2017 before the Bombay High Court and the evidence filed in the suit proceeding and before the Trade Mark office is almost common. Therefore, the appellant evidence in support of the application is crucial and it shall have direct bearing in the facts of the present case as well as in the civil suit filed by the respondents against the appellants. It is stated by the appellant that there is no intention on the part of appellant to delay any matter because it is the appellant who is suffering because of delay in its application for registration of the trade mark. Even after completion of the argument, the counsel for the appellant when enquired was agreeable to pay the reasonable cost upto Rs. 50,000/- as costs without prejudice in case one final chance is given to take the evidence on record and to complete the same within a short period of time under Rule 51. His submission was that the proceedings should be decided on merit rather on technical grounds.

The Hon'ble Supreme Court reported in State of Punjab and another v. Sham Lal Morari and Anr. (MANU/SC/0494/1975 : AIR 1976 (SC) 1177:

"We must always remember that procedural law is not to be tyrant but a servant common not an obstruction but an aid to justice. It is has been wisely observed that procedural prescription are the housemaid and not the mistress, a lubricant and not a resistant in the administration of justice. But, grammar apart if what can be corrected without injury to a just disposal of the case we should not enthrone a regulatory requirement into a dominant desideratum. After all courts are to do justice, not to wreck this end product on technicalities. Viewed in this prospective even what is regarded as mandatory traditionally may perhaps have to be moderated into wholesome directions to be complied within time or in extended time."

In case of Rajkapoor & Company v. Chunilal Purushotam Lal & Company in a miscellaneous petition No. 134 of 1961 (Unreported) Hon'ble Justice K.K. Desai of High Court of Bombay observed as under:

"It is clear that rules 53 to 55 enable the parties to lead evidence in matters of application for registration and opposition by affidavits it is also true that time limits have been prescribed by thee rules for filing such evidence even so if thee is hardly any doubt that if the relevant evidence is forth coming then generally the Registrar should in his discretion's make the record complete by allowing such evidence to be filed."

After hearing of both parties and material placed on record, we are of the view that there is no clear and cogent evidence available on record to show that the appellants have positively received the copy of evidence filed under Rule 50 by the appellant or his attorney. It is case where both views are possible. Thus, in view of serious controversy and disputes involved, we are inclined to give benefit of doubt to the appellant. In the impugned Order, all the aspects have not been dealt by the Registrar of Trade Marks, who has decided the matter on the basis of technicalities. The approach of the Registrar of Trade Marks is merely one sided and no reasonable. Therefore, the said order is sustainable in law. It is matter of fact that in the courier receipt, the complete address of the attorney has not been mentioned. Tracking Report by passage of long period of time cannot be gathered. There is no rule to send the documents and evidence and pleading through recognized courier. In case the evidence is refused, the appellant case would also be prejudiced in Civil Court where the suit is filed by the respondents against the appellant. Although, we are clear in our mind that if there was a clear and cogent evidence is available on record about the service of the evidence then the position would have been different, we might not have taken the evidence on record but such situation is not there in the present appeal.

The Hon'ble Supreme Court in the case of Union of India v. Tecco Trichy Engg. & Contractors (reported in MANU/SC/0214/2005 : (2005) 4 SCC 239 has held that the delivery of an arbitral award is not a matter of mere formality as after the receipt of the award set in motion several part of limitations such as application for correction and interpretation of award within 30 days. Therefore, delivery of copy of award has the effect of confirming certain rights on the party as also bringing to an end the right exercise than right of expiry of prescribed limit of limitation which would be calculated from that date, therefore, the delivery of such copy is an important stage in the proceeding.

In case the test of this judgement is applied in the facts of present case appeal, it is clear that receiving of copy by the appellant is an important stage of the proceeding, the evidence would only trigger once the copy is served, the appellant is to file the evidence under Rule 51 and thereafter the stage of evidence under Rule 52 of the Trade Mark Rules, 2002 will commence. Since in the present case, the service of evidence of the respondent evidence is doubtful, thus is not the right of the evidence by the appellant under Rule 51 cannot be closed. The impugned Order has been passed by the Registrar of Trade Marks wherein merely inference was drawn by holding that the copy has been received. The said approach cannot be accepted in the matter where the valuable rights of one of the parties are involved.

Under these circumstances, the appeal is allowed subject to the costs of Rs. 50,000/- which shall be paid by the appellants (who agreed) without prejudice to the respondents' attorney within four weeks from today. Thereafter, the affidavit filed by Mrs. Munira Virani dated 14.11.2017 in support of the application under Rule 51 is taken on record as part evidence. The respondent shall thereafter serve the copy of the affidavit dated 14.12.2009 of Mr. Jalaluddin Virjee as well as the documentary evidence within two weeks from the date of receipt of costs. The appellant then would positively file the complete evidence dealing with the evidence of the respondent two months from the date of receipt of copy of affidavit.

Upon receipt of the same, the respondent will also file the evidence in reply under Rule 52 within one month thereafter from the receipt of the evidence. In case extension of time is granted, the same will be decided by the Registrar of Trade Marks as per rules.

Once the evidence is complete, the Registrar of Trade Marks will fix the final date of hearing in the matter. The impugned Order is accordingly set aside. The appeal and pending interim applications stand disposed of.