Ambala Lalludas Patel vs Bhagwan Kirana Co

Ambala Lalludas Patel vs Bhagwan Kirana Co. And The ... on 16 November, 2006

Intellectual Property Appellate Board Ambala Lalludas Patel vs Bhagwan Kirana Co. And The ... on 16 November, 2006 Equivalent citations: 2007 (34) PTC 610 IPAB Bench: Z Negi, U T S. ORDER

S. Usha, Member (T)

1                    Appeal No. 2 of 2000 along with Civil Application No. 41 of 2000 in Appeal No. 2 of 2000 for stay filed before the High Court of Gujarat, Ahmedabad has been transferred to this Board in terms of Section 100 of the Trade Marks Act, 1999 and numbered as TA/279/2004/TM/AMD.

2                    The appellant filed an application for registration of the label "PUJARI Brand Jeera', inter-alia consisting of the word 'PUJARI' along with device of a Pujari and letters 'A' and 'L' in respect of Jeera, Fennal Seeds, methi seeds in class 30 under application No. 474884 on 9.7.1987 claiming user since 23.12.1981. The said application was advertised before acceptance in the Trade Mark Journal No. 1086 (Supplement) dated 8.9.1994 at page 54.

3                    The first respondent had given their notice of intention to oppose the registration of application No. 474884 and the appellant herein had filed their counter statement to the said application. The first respondent did not file their evidence in support of opposition, but had written to the Assistant Registrar, that they relied on the notice of opposition, whereas the appellant had neither filed their evidence nor had intimated the Assistant Registrar about their intention to rely on the counter statement for evidence in support of their application. After completion of formal procedures the Assistant Registrar set the matter for hearing.

4                    The Assistant Registrar heard the matter and allowed the opposition and refused registration for the reason that the first respondent had not given any reason under Section 9 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the said Act) to say as to why the mark applied for is not distinctive or capable of being distinguished.

He had allowed the objection raised under Section 12(1) of the said Act as the first respondent had submitted a copy of the registered trade mark proving that they are the registered proprietors of the mark 'JEERA PUJARI' and also that the goods are same and the mark applied for registration is deceptively similar with that of the first respondent's registered mark.

As regards Section 11(a) of the said Act, the Assistant Registrar allowed the objection of the first respondent that the use of the impugned mark will cause confusion and deception and also because of the fact that the appellant did not file any evidence in support of their application as the onus to prove the registrability of the application was on the appellant. The learned Assistant Registrar also rejected the claim of the appellant under Section 18(1) of the said Act. The Assistant Registrar also rejected the case of the appellant under Section 12(3) of the Act as the appellant had failed to produce any document in support of their application. The learned Assistant Registrar on accepting the contention of the first respondent that they had adopted the mark 'JEERA PUJARI' since 1.4.1980 from their trading style wherein the appellant had not given any reason for their adopting the word 'PUJARI', allowed the opposition and refused registration of the application. Aggrieved by the said order the appellant filed the above appeal.

1                    The matter was taken up for hearing in the Circuit Bench at Ahmedabad on 26.7.2006. Learned Counsel Sri Umesh B. Brahmbhatt appeared for the appellant and learned Counsel Shri Ajay Amitabh Suman appeared for the first respondent.

2                    Learned Counsel for the appellant submitted that they have been using the mark 'PUJARI' brand Jeera in respect of jeera since 23.12.1981 and had gained reputation over the mark. He also contended that the non

appearance of the parties is not to be seriously viewed. The learned Counsel for the appellant forcefully argued that the opposition was attracted by resjudicata as there was already a compromise memo filed and a settlement arrived at between the parties. He also argued that as they have been using the trade mark since 1981, they were honest concurrent users and that there was no necessity to prove deception or confusion.

7. Learned Counsel for the appellant submitted that the Assistant Registrar had not considered the provisions of Section 9 of the Act and had passed an erroneous order. He also drew our attention to the findings of the Assistant Registrar as to the evidence being taken on record in his finding which were not filed by the first respondent at the earlier stage as per the procedure. Learned Counsel for the appellant relied on the following judgments in support of his claim:

F. Hoffimann LA Roche and Co Ltd. v. Geoffery Manners & Co Pvt. Ltd. ; Cycle Corporation of India v. T.I. Raleigh

Industries Pvt. Ltd. ; Madanagopal v. P.K.A.

Ramacandra Mudaliar (Dead) By LRS 1995 SCC Supp.; Sunderabai W/o Devrao Deshpande v. Devaji Shankar Deshpande 1954 AIR (SC)-0-82; Gupta Enterprises v. Gupta Enterprises ; Registrar of Trade Marks

v. Asok Chandra Rakhit Ltd. .

8. Learned Counsel for the first respondent mainly contended that the opposition proceedings will not be attracted by resjudicata as a compromise was entered into only in 2001 after the impugned order was passed by the Assistant Registrar in the year 1999. He also contended that the onus was on the appellant to satisfy the Assistant Registrar that the trade mark applied is not objectionable and is capable of registration. But here the appellant had neither filed any documentary evidence nor appeared before the Assistant Registrar to prove their case. Learned Counsel for the first respondent relied on following judgments in support of his claim:

Uphras Lapasan v. Ka Esiboll Lyngdoh ; National

Sewing Thread Co. Ltd. v. James Chadwick ;

Amritdhara Parmacy v. Shri Satya Deo Gupta AIR 1963 449; Dyer Meakin Breweries Ltd. v. Scotc Whisky Association AIR 1980 Delhi 125

9. We have carefully considered the pleadings on file and arguments of both the counsel. We are of the opinion that the marks being the similar and identical, there is every possibility of deception and confusion being caused in the public. On perusal of the records we find that the first respondent had been using the mark since 1.1.1980 whereas the appellants have been using the mark since 23.12.1981. Considering the above fact we are of the view that the first respondent is prior user in point of time and have valid rights than that of the appellant. We are, therefore, of the view that as per Section 9 of the said Act the application of the appellant does not qualify for registration. As regards Section 11(a) of the Act, to qualify for acquiring distinctiveness the appellant have to prove user. Here we do not find any evidence to prove user by the appellant. In fact the appellant has not filed evidence in support of his application nor have made a mention of the same in the counter statement filed either before the learned Assistant Registrar or this Board at the appeal stage. Moreover, we also find that the appellant has neither given any reason for his non appearance before the Assistant Registrar nor has he given any reason for non filing of evidence in support of his application even before this Board. Looking at the attitude of the appellant we are of the opinion that they are not interested in pursuing the application. As the mark does not qualify to be distinctive and are thus prohibited for registration under Section 11(a) of the said Act. Similarly, goods being the same, same consumers, same trade channels and same selling outlets for both the products and there being closer similarity between the goods, there is every likelihood of confusion being caused and are disqualified for registration under Section 11(a) of the Act.

1                    The goods have not acquired distinctiveness nor are capable of being distinguished and rights under Section 18 of the said Act is also not available.

2                    We are, therefore, of the opinion that the goods being the same and the mark applied is deceptively similar and identical with the registered mark, the objection of the first respondent under Section 12 of the Act sustains. In view of the foregoing reasons the appeal is dismissed, confirming the order of the Assistant Registrar of Trade Marks. As the main appeal itself has been dismissed, the Civil Application No. 41 of 2000 for stay becomes infructuous. However, there shall be no order as to costs.

Aftab Tobacco Products vs Amanat Tobacco Gul

Trademark Tribunal Aftab Tobacco Products vs Amanat Tobacco Gul Manufacture on 27 March, 2006 Equivalent citations: 2006 (32) PTC 713 Reg Bench: D Bansod, Artm JUDGMENT

D.S. Bansod, ARTM

The matter relates to the Review Petition dated 4th June, 2004 on Form TM-57 under Section 97(C) of the Trade and Merchandise Marks Act, 1958 filed by the opponents/petitioners against the Order dated 5th May, 2004 passed by Shri Ramji Lal, Assistant Registrar of Trade Marks (under the provisions of The Trade Marks Act, 1999) vide which the Opposition No. DEL-T-3769 was abandoned. The grounds of review are stated in the Review Petition (Statement of Case).






In brief the facts in this case are that the trade mark Raja Gul Label was sought for registration under application No. 583085 in class 34 claiming proprietorship to the mark since the year 1987 by M/s Aftab Tobacco Products, Malikpura, P.O. Mohamadabad, Yusufpur, Distt, Ghazipur, U.P. The application was advertised in Trade Marks Journal No. 1269 dated 16th April, 2002 at page No. 349.




　


A notice of opposition on Form TM-5 was lodged on 5th August, 2002 by M/s Amanat Tobacco Gul Manufacturers, Near Mahavir Dharamshala, Yusufpur, Mohamadabad, Distt, Ghazipur, U.P - 23227, objecting to the registration of the aforesaid mark of the Applicant under Sections 9, 11(a), 11(c), 12(1), 12(3) and 18(1) of the Trade and Merchandise Marks Act, 1958. The counter-statement was filed by the applicant on 23rd April, 2003 denying all the material averments in the notice of opposition. A request on Form TM-56 was filed for an extension of time (two months) up to 11th April, 2004 for filing the opponent's evidence in support of opposition. The said request was partly allowed and the extension of time up-to 15th March, 2004 was granted to the opponents for filing an evidence and informed to the opponent vide office letter No. 9444 dated 5th March, 2004 as per provision of Rule 50(1) of the Trade Marks Rules, 2002. Another request on Form TM-56 was filed for extension of time of one month (i.e. 15.03.2004 to 15.04.2004) but the said request was refused under the provision of Trade Marks Act, 1999 on 25th March, 2004.






The Review Petition came up for hearing before me on 24th October, 2005 when Shri O.P. Chauhan, Advocate appeared on behalf of the Opponents/Petitioners and Shri Ajay Amitabh Suman, Advocate authorised by M/s Delhi Registration Service appeared on behalf of the Applicant/Respondent.




　


The legal position of review under the Trade Marks Act, 1999 and the Trade Marks Rules, 2002 are that they did not specify any grounds for review of the Registrar's decision. The provisions contained in Order 47 Rule 1 of the Code of Civil Procedure do not in terms apply to the proceedings before the Registrar. But since the Legislature has deliberately used a term which has a known legal significance in Law, it must be taken that the Legislature has attacked to that term that known legal significance. Hence, it would appear that the term "Review" in Section 127(C) of the Trade Marks Act, 1999 must be construed as having the same legal meaning as in Order 47 Rule 1 of Civil Procedure Code.






Under Order 47 Rule 1 of Civil Procedure Code, a Review Petition can be entertained only on the basis of one or more of the following grounds:

I. On the ground of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the Applicants knowledge or could not be produced by him at the time when the decree was passed or order made, or

II. On account of some mistake or error apparent on the face of the Record,

 

or III. For any other sufficient reason.

The question arises whether there is any mistake or error apparent on the face of the record to review the order.






Shri O.P. Chauhan, Advocate for the opponents/petitioners readout the statement of the case and grounds of Review and submitted that the evidence of the opponents filed on 5.4.2004 was not considered in the present case and law was not properly applied. Shri O.P. Chauhan, Advocate further submitted that the order for abandonment was passed under the 1999 Act cogently in violation and contravention of Section 159(4) of the Trade Marks Act, 1999. Hence, order as such should have been passed under the 1958 Act, which is still in force as enumerated under Section 159(4) of the 1999 Act as the instant opposition was filed under the provisions of 1958 Act and not under the Trade Marks Act, 1999. Moreover, the refusal of TM-56 dated 16th March, 2004 was not communicated to the opponents which is a serious lapse on the part of the ex-Assistant Registrar and hence there is a patent mistake or error apparent on the face of record as envisage within the provisions of Order 47, Rule 1 of Civil Procedure Code.




　


Shri Ajay Amitabh Suman, Advocate appeared on behalf of the applicant/respondent stated that the Trade Marks Act, 1999 is actionable for TM-56 dated 9.2.2004 and thereafter dated 16.3.2004 and invited my attention to Rule 50 of The Trade Marks Rules, 2002 as well as Section (sic) of The Trade Marks Act, 1999 and requested for dismissal of the Review Petition with cost as there is no apparent mistake on the face of the record.






Shri O.P. Chauhan submitted that the opponents evidence was on record on the date of passing an impugned order dated 5th May, 2004 and requested to allow the review petition filed by the opponents/petitioners.




　


The provisions of Rule 50 of The Trade Marks Rules, 2002 are as under:

Evidence in support of opposition.

(1) Within two months from services on him of a copy of the counterstatement or within such further period not exceeding one month in the aggregate thereafter as the Registrar may on request allow the opponent shall either leave with the Registrar, such evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition. He shall deliver to the applicant copies of any evidence that he leaves with the Registrar under this sub-rule and intimate the Registrar in writing of such delivery.

(2) If an opponent takes no action under Sub-rule (1) within the time mentioned therein, he shall be deemed to have abandoned his opposition.

1. (3) An application for the extension of the period of one month mentioned in Sub-rule (1) shall be made in Form TM-56 accompanied by the prescribed fee before the expiry of the period of two months mention and therein.

12. Under Rule 50(1) two months time is permitted to file the opponents evidence and thereafter one month extension in the aggregate can be granted and if the request is allowed the opponent shall either Leave with the Registrar, such evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition. In the present case opponents/petitioners has filed evidence after the 3 months period i.e. on 5th April, 2004. The extension of time up to 15th March, 2004 was granted to the opponents for filing an evidence and was accordingly

informed to the opponents vide office Letter No. 9944 dated 5th March, 2004. Therefore the order was recorded on 25th March, 2004 under the provision of Rule 50(2) which says "If an opponent takes no action under Sub-rule (1) within the time mentioned therein, he shall be deemed to have abandoned his opposition. This fact was considered by the Registrar at the time of passing the order as provided in Rule 50 of the Trade Marks Rules, 2002. Hence, there is no error apparent on the face of the record as pleaded by the opponents/petitioners.

1. The application for registration was filed on 15.10.1992 and the said matter is pending, I feel great injustice will accrue to the applicant if registration is denied to the applicant for the negligence of the Opponents. Moreover, the opponents/petitioners have a remedy to apply for its rectification.


2. I find that a careful consideration was given to the material placed on the record. I do not find any reason or mistake apparent on the face of the record to justify the review of the order in the absence of any petition. In the present case as already observed above the then Assistant Registrar vide his Order dated 5th May, 2004 gave a definite finding on merits after taking into consideration all the facts lead before him.


　


In view of the foregoing and on consideration of the overall facts and circumstances of the case, I hereby dismiss the Review Petition filed by the opponents/petitioners.




There shall be no order as to the costs.

　

SHRI DEEPAK KISHORE JOSHI VS OSWAL INDUSTRIES

INTELLECTUAL  PROPERTY APPELLATE BOARD

Guna Complex, Annexe-I, 2^nd Floor, 443, Anna Salai,

Teynampet, Chennai – 600 018

(Circuit Bench sitting at Delhi)

TRA/108/2004/TM/DEL      (C.O. No. 7/1998)

THURSDAY  THIS,  THE 17^th  DAY  OF FEBRUARY,  2005

Hon’ble SHRI JUSTICE S. JAGADEESAN            -- Chairman

Hon’ble DR. RAGHBIR SINGH                                --Vice-Chairman

SHRI DEEPAK KISHORE JOSHI

Trading as

M/s. GALAXY FOOTWEAR

A-21/1, Naraina Industrial Area

Phase-I

NEW DELHI - 110 028                                                         --       Applicant

(By Advocate – None)

Vs.

1. M/s. OSWAL INDUSTRIES

H-26,  Udyog Nagar

DELHI – 110 041.

2. THE REGISTRAR OF TRADE MARKS

Trade Marks Registry

Okhla Industrial Estate

NEW DELHI – 110 020                                                        --          Respondents

                                                                       

(By Advocate – Shri Ajay Amitabh Suman for R-1)

 

O R D E R

(No. 60 of 2005)

Hon’ble Shri Justice S. Jagadeesan

            While the matter was pending before the Hon’ble High Court of Delhi, the learned counsel for the first respondent filed IA/104/2000 for discharging him from the case and the High Court directed notice to the applicant.  By endorsement dated 20.11.2001 from the High Court, it is seen that the notice sent to the applicant returned un-served with endorsement ‘Locked’.  Fresh notice was ordered by the High Court on 4.11.2003, the service of which could not be effected.  The notice send from the Registry of the Appellate Board to the applicant also returned with remarks that ‘Galaxy Footwear is closed since long’, who is the applicant herein.  In view of the same, no option is left with us but to dismiss the TRA/108/2004/TM/DEL for non-prosecution.  Accordingly, the same is 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.

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

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

KAMDHENU ISPAT LIMITED VS NANDLAL FRUIT PROCESSOR PVT LTD

$~ R-37 * IN THE HIGH  COURT  OF  DELHI  AT  NEW  DELHI

 %             Judgment Pronounced on: July 10, 2012

   +     RFA(OS) 129/2010

 M/S KAMDHENU ISPAT LIMITED                 ..... Appellant Represented by: Mr.Ajay Amitabh Suman, Advocate    with Mr.Pankaj Kumar, Advocate

   versus   

 M/S NANDLAL FRUIT PROCESSOR PVT LTD & ANR     ….Respondents Represented by: None 

     CORAM:   HON'BLE MR. JUSTICE PRADEEP NANDRAJOG   HON'BLE MR. JUSTICE MANMOHAN SINGH   MANMOHAN SINGH, J. (ORAL)

                 1. The present Regular First Appeal arises out of the judgment/order dated 18th October, 2010 whereby the appellant’s suit bearing CS(OS) No.2301/2008 for infringement of trade mark and passing off was dismissed along with the pending applications.  

               

                2. The finding of the learned Single Judge was that the suit itself does not disclose any cause of action for any reliefs claimed.

           

                3. The suit as well as the interim application was listed before the Court.  Learned counsel appearing on behalf of the appellant states that only in the interim application, arguments were addressed by both sides.

                    4. As far as the finding arrived in the interim application is concerned, we have heard the learned counsel appearing on behalf of the appellant and after hearing, we are of the considered view that it is not a fit case which requires any interference, in view of the averments made in the pleadings of the defendants and documents placed on record.  The learned Single Judge after examining those documents has rightly come to the conclusion that the documents filed by the defendants therein showed that they have been using the word ‘KAMDHENU’ as their corporate name/trade name since 1969; their documents also revealed a partnership deed of 1986 and the material on record also suggested that they have been using the mark at least since 2000 if not earlier.  The suit was filed in the year 2010.  The business activities of both the parties are different, as the plaintiff/appellant is engaged in the business of manufacturing and selling steel products and on the other hand, the defendants/respondents are in the business of trading spices, pickles etc.

               

                5. We agree with the said finding arrived by the learned Single Judge who dismissed the interim application being I.A. No.13348/2008.  However, by rejecting the interim injunction, the learned Single Judge has also rejected the plaint by observing that the suit itself does not disclose any cause of action for any of the reliefs claimed.  

               

                6. We are not agreeable with the said view taken by the learned Single Judge, as a cause of action is a bundle of facts which are required to be pleaded and proved for the purposes of obtaining relief claimed in the suit.  Whether a plaint discloses a cause of action or not is an essential question of fact, but whether it does or does not, must be found out from reading of the plaint itself.  In ascertaining, whether the plaint shows a cause of action, the Court is not required to make an elaborate inquiry into doubtful or complicated question of law and facts.  Rejection of plaint is a serious matter, as it non-suits the plaintiff and it finishes a cause of action, the moment plaint is rejected.  In the present case, we feel that the plaint ought not to have been rejected while deciding the interim application.  Even there was no representation on behalf of the respondents in this regard.

                 7. Under these circumstances, the appeal is partly allowed.  As far as the interim application under Order XXXIX, Rules 1 & 2 CPC being I.A. No.13348/2008 is concerned, the same shall be treated as dismissed.  The suit is accordingly restored at its original position.

               

                8. The suit shall be listed before the Joint Registrar on 16th August, 2012 who shall serve the defendants afresh and after completion of admission/denial of the documents would list the suit before Court for settling issues and directions for trial. 

    (PRADEEP NANDRAJOG)                                   JUDGE                                   (MANMOHAN SINGH)                                          JUDGE JULY 10, 2012/ka