Kumar Dal Mills vs Bansi Lal Aggarwal

Z.S. Negi, J

The respondent herein has filed an application for removal/rectification of Trade Mark No. 473275 in class 29 which is registered in the name of

the applicant herein, Since counter-statement has been filed by the applicant after a delay of fifteen months, the applicant has also filed this

application for condoning delay in filing the counter statement.

Since this is an application for condoning delay, it is necessary for us to traverse the merits of the facts. The only point for consideration by us is

whether there is any sufficient cause for not filing the counter-statement within the prescribed period. To find out this, it is necessary to look into

the averments made in the application as to the sufficiency of the cause for delay.

The applicant has made the following averments in the application:

That the respect was represented by his counsel in the Application No. ORA/60/2004/TM/DEL in all through the proceedings. That the respondent

had received notice in the said application as well as M.P. No. 85 of 2004. The M.P. No. 105 of 2004 was fixed for hearing on 01.11.2004. The

respondent filed reply to the application for stay/injunction and its counsel also attended to the hearing at New Delhi. Necessary orders were

passed in the said M.P. and received in the office of the counsel for the respondent. Unfortunately out of a clerical mistake, the order in the said

M.P. was though to be the final order and the file was closed and kept in the closed file store by the office clerk of the counsel. Nothing happened

from either side since then. That the respondent received a communication dated 24.10.2005 in respect of Appeal No. OA/104/TM/CH

(Ghanshyam Perfumery and Co. v. Shankar Perfumery Works and Anr.) from the Deputy Registrar of the Board informing that the counter

statement has not been filed in the said matter. Since the concerned file itself was not ascertainable in the office, it could not be complied with. As

a last resort, the room, where only closed files are stored, was searched and the file pertaining to these proceedings was located and retrieved

along with the file pertaining to the present application for rectification, in which the similar mistake was committed by the office clerk.

The respondent also contested the proceedings in M.P. No. 85 of 2004 before the Hon'ble Board. The cross suits pending between the respondent

and the applicant are pending before the Ld. Court of ADJ, Delhi and the respondent has also filed Notice of Opposition to trade mark ""SHAKTI

BHOG"", as advertised in the Trade Marks Journal, in the name of applicant herein. The respondent had all bona fide intention to contest the present

proceedings. It never had any intention not to file the counter statement or not to contest the present proceedings.

The non-filing of the counter statement on the part of respondent in time is neither intentional not deliberate. It is unfortunate outcome of a clerical

mistake on the part of office clerk of the counsel for the respondent, more particularly, as stated above. An affidavit of the clerk of the counsel for

the respondent owning responsibility for this mistake tendering apology to all concerned is also filed.

The counsel for the respondent has not opposed the application for condonation of delay.

Before entering into the discussion, it may be worthwhile to refer to two Judgments of the Apex Court. One is the case of Ramnath Sao @

Ramnath Sahu and Ors. v. Goverdhan Sao and Ors. 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 appellant No. 22 and 3 years in the case of the appellant No. 4, 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 petitioner by a slipshod order

in overjubilation 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 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 cause 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 reipublicae up sit finis litium (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 known 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 and State of W.B. v.

Administrator, Howrah Municipality.

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.

From the above principle laid down by the Apex Court, the legal position is: (1) the word ""sufficient cause"" should receive liberal construction to

do substantial justice; (2) what is the sufficient cause? is a question of fact in a given circumstance of the case; (3) It is axiomatic that condonation

of delay is the discretion of the Court; (4) length of delay is no matter, but, acceptability of the explanation is the only criterion; (5) the rules of

limitation are not meant to destroy the rights of the parties, but, they are meant to see that the parties do not resort to dilatory tactics to seek their

remedy promptly; (6) if the explanation does not smack of mala fides or it is to put forth as part of the dilatory strategy, the Court must show

utmost consideration to the suitor: (7) if the delay was occasioned by the party deliberately to gain time, then Court should lean against acceptance

of the explanation and while condoning the delay, the Court should not forget the opposite party altogether.

Keeping in the above principles in view, we have to consider the averments made by the applicant and also whether the delay in filing counter-

statement can be condoned.

On a conspectus reading of the principles laid down in various Judgments, it is well settled that a liberal approach should be extended while

considering the application for the condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or

attempt to hoodwink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no

indulgence should be shown by condoning the delay applied for. It is also quite clear to the fact that it is not the number of days of delay that

matters, but the attitude of the party which caused the delay. In other words, when the Court finds the party who failed to approach the Court

within the time stipulated comes forward with an explanation for condoning the delay, the Court, if satisfied with the delay occasioned not due to

the deliberate conduct of the party, but, due to any other reason, then by sufficiently compensates the prejudice caused to the other side monetarily,

the condonation of delay can be favourably ordered.

Now, coming to the facts of the case, the applicant has stated that out of a clerical mistake, the order in M.P. No. 105 of 2004 was thought to be

the final order and the file was closed and kept in the closed file store by the office clerk of the counsel and nothing happened from either and since

then. The search for file has started after communication in another appeal was received from this Board's Registry and file pertaining to this

rectification application retrieved alongwith that appeal file. In order to proper adjudication of application for rectification, the counter-statement is a

necessary record it the interest of fair trial it will be just and proper to take the counter-statement on record. That is possible only if the delay is

condoned in filing the counter-statement. Since the learned Counsel on the other side has not opposed the application on hand, it might not be

causing serious prejudice to the opposite side. The appellant has paid a fee of Rs. 15,000 for condoning the delay. When that be so, it is highly

improbable to conclude that the applicant has deliberately delayed the filing of the counter-statement. On the face of above facts of the case, we

have to hold that the reason given by the applicant for the delay is sufficient cause for condoning the delay.

The respondent has not filed reply and the counsel has not opposed and not put forth or raised any plea of prejudice that would be caused by

condoning the delay. Even assuming that the first respondent has got any accrued right which suffers because of the entertaining of the appeal

beyond the period of limitation, we are of the view that the interest of justice would be met by awarding cost to the respondent and accordingly we

condone the delay and order the petition on the condition that the petitioner shall pay a sum of Rs. 5,000 by way of cost to the respondent herein

either directly or through the counsel within two weeks from the date of receipt of a copy of this order. Failure to comply with the order would

result in the dismissal of the application. The Registry is directed to take the counter-statement on record as and when the respondent intimates the

receipt of the cost.