Highway Industries Limited vs Darshan Singh And Deputy Registrar Of Trade Marks

S. Usha, J

The instant application is to condone the delay of 72 days in filing the appeal against the order of the Deputy Registrar of Trade Marks dated

21.06.2012. The facts of the case are as follows;

The impugned order was passed on 21.06.2012 and received by the appellant on 13.07.2012. The copy of the order was forwarded to the appellants

and by mistake the clerical staff had placed the original order copy in some other file and therefore was not brought to the knowledge of the

management. The counsel, who had written a letter for the payment of bill for attending the hearing in December, 2012, the appellant had thereafter

requested for the copy of the order. The order copy was sent to the appellant and on receipt of instructions from the appellant the appeal was filed

with a delay of 72 days. The delay in filing the appeal is neither intentional nor deliberate and is the outcome of the clerical mistake. It is just a bona

fide mistake and cannot be attributed to the appellant.

The impugned order is ex facie not sustainable in law and there is a very strong probability that the same would be set aside by this Board after

hearing the parties. The appellant is most likely to succeed in the appeal and in all probabilities will succeed on merits. The balance of convenience is

in favour of the appellant and against the respondents.

The delay is about 72 days. The appeal ought to have been filed by 13.10.2012, but was filed on 17.12.2012. If the delay is condoned, it will not

cause any loss or hardship to the respondents, whereas if the delay is not condoned the appellant would suffer irreparable loss and be prejudiced

We heard both the counsel.

The learned counsel for the appellant reiterated what was stated in the application for condoning the delay. The counsel finally relied on the

judgment of this Board reported in 2004 (29) PTC 601 (IPAB) (KONINKLIJKE PHILIPS ELECTRONICS NV Vs. KAY KAY HOME

APPLIANCES PVT. LTD. & ANOTHER), wherein this Board had condoned the delay of 426 days.

The learned counsel for the 1st respondent submitted that the condonation application ought to have been filed in Form 5 and not in Form 3. The

statement of the case has not been given. Rule 2 of the Rules not complied with. The delay is due to negligence. There is no sufficient reason for the

delay, where the date of receipt of the letter from the appellant as to the non-receipt of the order copy is not given.

The counsel relied on the following judgments:

(i) 2012 (4) PTC 412 (IPAB), (JENSON & NICKOLSON (INDIA) LTD., Vs. JOINT REGISTRAR OF TRADE MARKS & ANOTHER)-

condonation application dismissed as no valid and sufficient reason given.

(ii) 2006 (33) PTC 118 (AMBER FOOD PRODUCTS Vs. DILIP KIRPLANI & OTHERS)-Time to file the application seeking extension of time to

file written statement was rejected as if it would be allowed the purpose of amendment in the Rule shall be defeated.

We have heard and considered the arguments of both the counsel.

The only issue that arises for consideration is whether there is any valid or sufficient reason for not preferring the appeal within the stipulated period

of time.

In this regard it is worthwhile to refer to the judgments of the Hon'ble Supreme Court,

Ramnath Sao @ Kamnath Saha and Ors. v. Goverdhan Sao and Ors., 2002 (3) SCC 195: 2002 (3) LW 417. It is a case under Section 5 of the

Limitation Act to condone the delay of 130 days of the case of appellant No. 3 of 5 years in the case of the appellant No. 22 and 3 years in the case

of the appellant No. 41, in applying to bring on record their legal representatives and substituting the heirs, the learned Judges set aside the judgment of

the Division Bench of the High Court confirming the order of the learned single Judge and condoned the delay by allowing the petition. Of course, that

arises out of an application to bring the legal representatives on record, where the learned Judges have laid the following principle:

Thus it becomes plain that the expression ""sufficient cause"" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any

other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is

imputable to a party. In a particular case whether explanation furnished would constitute ""sufficient cause"" or not will be dependent upon facts of each

case. There cannot be straightjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is

clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over

jubilation of disposal drive. Acceptance of explanation, furnished should be the rule and refusal an exception more so when no negligence or inaction

or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact

that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning

delay in a routine like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected

when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against

whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the

matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.

Another judgment of the Supreme Court is also worth mentioning. In the case of ""N. Balakrishnan v. M. Krishnamurthy, 1998 (7) SCC 123: 1999 (1)

LW 739"", there was a delay of 883 days in filing the application for setting aside the ex-parte decree. The Trial Court condoned the delay. However,

when the matter was taken to the High Court by way of Civil Revision petition, the learned single Judge, set aside the order of the Trial Court and

dismissed the petition for condoning the delay. That order of High Court was set aside by the Supreme Court. Justice K.T. Thomas, speaking for the

Court, succinctly laid down the law observing thus in paras 8, 9 and 10:

The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very

much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short

intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission

to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic

consequences.

It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can

be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes,

delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range

can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of

discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on

wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the

superior court would be free to consider the case shown for the delay afresh and it is open to such superior court to come to its own finding even

untrammeled by the conclusion of the lower court.

The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for

approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

The learned Judge of the Supreme Court further observed in paragraphs 11, 12 and 13 which runs thus:

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 new persons to seek legal remedy of 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 republican up sit finis lithium (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, (1969) 1 SCR 1006 and State of W.B. v.

Administrator, Howrah Municipality, (1972) 1 SCC 366.

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 would have incurred quite large litigation expenses.

The last paragraph of the judgment in N. BALAKRISHNAN Vs. M. KRISHNAMURTHY 1998 (7) SCC 123) squarely applies to the case on hand.

The delay in this case is because of clerical mistake on the part of the appellant. We do not find any dilatory strategy on the appellant's part. As

observed by this Board in Koninklijke Philips' case (supra) there is no averment by the respondent as to what is the benefit derived by the appellant by

the delay in approaching the Board. Here the appellant is the opponent before the Registrar and is therefore a person aggrieved.

In this case, we do not find any reason not to condone the delay and therefore the delay is condoned on payment of Rs. 5000/- to the first

respondent. Accordingly, the delay is condoned on payment of costs of Rs. 5000/- (Rupees five thousand only) to the first respondent within two (2)

weeks from the date of receipt of this order. The appellant is directed to comply with the above condition within the above mentioned period and file

the proof into this Registry. On receipt of the proof, the Registry is to number the appeal, if it is in order.