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
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