HAMDARD INDUSTRIES VS HAMDARD NATIONAL FOUNDATION (INDIA)

INTELLECTUAL  PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai – 600 018 (Circuit Bench sitting at Delhi) C.O.D. No. 15 of 2004  in  S.R. No 190/2004/TM/IPAB WEDNESDAY  THIS,  THE 9th  DAY  OF  FEBRUARY,  2005 Hon’ble Shri JUSTICE S. JAGADEESAN          -- Chairman Hon’ble Dr. RAGHBIR SINGH                             --Vice-Chairman 1. M/s. HAMDARD INDUSTRIES Dhaunra Tanda BAREILLY – 243 204 UTTAR PRADESH                                                   --       Petitioner/Appellant  (By Advocate Shri Ajay Amitabh Suman) Vs. 1. M/s. HAMDARD NATIONAL FOUNDATION (INDIA) 2A/3, Asaf Ali Road NEW DELHI – 110 002. 2. ASSISTANT REGISTRAR OF TRADE MARKS TRADE MARKS REGISTRY Okhla Industrial Area NEW DELHI – 110 020.                                           --          Respondents   (By Advocate  - Ms. Monika Vij for R1)   O R D E R        (No.45/05) Hon’ble Shri Justice S. Jagadeesan             The petitioner has preferred this appeal against the order of the Assistant Registrar of Trade Marks, New Delhi dated 23.7.2004 wherein the opposition of the first respondent was allowed and the application of the petitioner for registration was rejected. 2.         The petition is to condone the delay of 28 days for filing the appeal. The petitioner has stated that the order of the Assistant Registrar of Trade Marks, New Delhi was communicated to the counsel on 17.8.2004 and the same was forwarded to the petitioner by their counsel. The petitioner has misplaced the impugned order of the Assistant Registrar and totally forgot about the filing of appeal till they were reminded by their counsel. Immediately on the reminder, the petitioner gave instructions to their counsel to prefer the appeal and the appeal was filed before this Board on 13.12.2004.  The period of limitation prescribed under Section 91(1) of the Trade Marks Act, 1999, is three months from the date of communication of the order. Hence the appeal ought to have been filed on or before 16.11.2004. The delay is due to misplacement of the impugned order and as such, the delay is neither wilful nor wanton. The delay being a bonafide one, unless the delay is condoned, the petitioner will be prejudiced. Hence the delay has to be condoned. The learned counsel for the petitioner Shri Ajay Amitabh Suman argued the matter reiterating the averments made in support of the petition for condoning the delay. 3.         Ms. Monika Vij, the learned counsel for the first respondent, by referring to some of the judgements, vehemently opposed the application for condoning the delay contending that the petitioner has not explained each day’s delay and as such, the petition is liable to be dismissed. Further, the learned counsel for the first respondent contented that the whole-sale reason given by the petitioner cannot be accepted and it is for the petitioner to instruct the counsel for filing the appeal, immediately on receipt of the impugned order. The misplacement of the impugned order itself establishes the grave negligence on the part of the petitioner and as such, the petitioner failed to establish any sufficient cause for condoning the delay. 4.         We carefully considered the above contentions of both the counsels. It is unnecessary for us to refer to the judgements cited by the learned counsel for the first respondent for the simple reason that the factum of the availability of sufficient cause has to be considered on the facts and circumstances of each case and the precedence cannot be followed in a blanket manner. 5.         Coming to the reason given by the petitioner for the delay is that their counsel immediately on receipt of the impugned order of the Assistant Registrar had forwarded the same to them and they misplaced the said impugned order. Due to the misplacement of the impugned order they totally forgot about the matter till a reminder came from their counsel.  Immediately, the petitioner made arrangements and the appeal has been filed with a delay of 28 days. It is for us to consider whether the reason given by the petitioner for the delay would be a sufficient cause as contemplated under Section 91, which is in parametria Section 5 of the Limitation Act, 1963. 6.         The reason given by the petitioner is misplacement of the impugned order received by them. The misplacement cannot be explained for everyday.  Naturally, the papers have to be traced and unless and until it is established that there is some malafide intention of the petitioner to drag on the proceedings, it will amount to sufficient cause. Hence we are of the opinion that there is sufficient cause for condoning the delay. 7.         Though we found that there is sufficient cause for condonation of delay, there is no doubt that misplacement of the order is due to negligence on the part of the petitioner to protect their right. Even though there may not be any malafide intention to delay the proceedings but still the petitioner could have been a little more careful in prosecuting the matter by avoiding the delay. Hence we impose a cost of Rs. 2,500/- on the petitioner for condoning the delay. This C.O.D. petition No. 15/2004 is ordered on condition that the petitioner shall pay a sum of Rs. 2,500/- to the learned counsel for the first respondent or the first respondent by way of Demand Draft within one week from the receipt of this order, failing which the C.O.D shall stand dismissed. (Dr. Raghbir Singh)                                                            (Justice S. Jagadeesan)    Vice-Chairman                                                                               Chairman AVN Disclaimer: This order is being published for present information and should not be taken as a certified copy issued by the Board