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Judgment
Sathiadev, J.
Petitioner claims that it has been manufacturing a pharmaceutical product known as ''Helmizole'' since 11-4-1981, and the trade-mark was
advertised in the Journal No. 849 dt. 16-10-1984 at page No. 478. Third respondent claims to be the adoptee of the trade mark ''Helmizol'' from
July 1982, and filed its opposition in Form No. TM 5 to the first respondent under S. 21 of Central Act 43 of 1958 (hereinafter called as the Act).
First respondent forwarded a copy of the said opposition to the counsel for petitioner for filing counter-statement, and it was received by him on
20-2-1985. In his diary, instead of noting the last date for sending the counter-statement as 20-4-1985, by oversight he noted it as 20-5-1985. It
is, thereafter, realising his mistake, he wrote a letter on 17-5-1985, forwarding the counter-statement in form No. TM 6, with a letter explaining the
reason for excusing the delay of one month. However, second respondent by communication dt.20-5-1985 informed the petitioner that the first
respondent had, directed him to state, that the counter statement having been filed beyond time, it has been rejected because S. 21(2) is
mandatory and does not allow any discretion to be vested in him to condone the delay under any circumstances. Aggrieved against this order, this
writ petition is preferred.
Respondents 1 and 2 have taken up the stand that S. 101 or S. 102 of the Act cannot be relied upon empowering the Registrar to excuse the
delay, and it is not as if petitioner is without any other remedy because, ''it is always open to petitioner to file a fresh application which is the true
and appropriate remedy open to him.'' Under S. 21, the time limit provided is mandatory in specifying a time limit of three, months, and, thereafter
allowing only a further period of one month, and beyond the said period prescribed, there is no jurisdiction in the Registrar to entertain the
application; whereas under S. 21(2), no such outer limit is prescribed. The contention of respondents is that S. 21(l) and (2) must be read together,
and that no discretion having been conferred on the Registrar under S. 21(2), the time-limit prescribed therein is equally mandatory as found in S.
21(l).
When no outer limit is prescribed under S. 21(2), it necessarily enables the Registrar to extend time, as found in S. 101(l). Once a sufficient
cause is shown for extending time for doing any act, in such of those instances where no time is expressly provided in the Act, then subject to such
conditions as he may think fit, he can extend the time. The expression ''not being a time expressly provided in the Act'' is referable to the outer time
limit provided under the Act. If no such outer time for compliance with the provisions of the Act is stipulated, then S. 101(l) has to be read along
with that section. Hence on this point alone, the writ petitioner succeeds.
Yet, he would point out quite rightly, that there is an obligation on the part of the Registrar when he had come to know that the petitioner is in
default in filing the counter-statement, to call upon him to remedy the default within a specified time, and in the event of non-compliance with such
directive, then it would necessarily get abandoned. This aspect was also not taken into account by the first respondent.
No doubt, respondents 1 and 2 have stated that, the only remedy available to petitioner is to file a fresh application. This is no answer, because
when there is a provision to excuse the delay there is no need for petitioner to adopt such a procedure. It is not made out clearly as to what they
mean by stating that petitioner could file fresh application, when it is expected to file only a counter-statement. When the right to file a counter-
statement had been already lost, how then it could file a fresh counter-statement has not been satisfactorily explained.
Learned counsel for the third respondent had relied upon Presentation Convent v. Corporation of Madras, (1985) 98 MLW 465 to claim that,
unless extension of time is specifically provided for, there is no power in the Registrar to extend time in exercising his inherent powers. There is no
question of any inherent power being exercised, because of the statutory power conferred under S. 101, which is required to be exercised by the
Registrar; when this section has to be read along with S. 21(2), the rationale of the said decision has no application to the instant case. S. 23(3) is
also referred to, but in the light of what has been already held, there is no need to refer to that section.
Learned counsel for respondents 1 and 2 adverts to the decision in Jackson and Co. v. Napper, 1887 Reports of Patent Design and Trade
Mark Cases, Vol. IV No. 2, page 45, claiming that petitioner should go to civil Court, but when power to condone defect is available in the Act
itself, and as first respondent has misconstrued his powers the impugned order is hereby set aside directing the first respondent to dispose of the
application filed for condoning the delay on its merits. No doubt, third respondent would point out that the application has not been filed in the
proper form. But, this is again an aspect on which petitioner could be called upon to rectify the defects.
Hence, the writ petition is allowed. No costs.
Petition allowed.