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Judgment
Prabha Sridevan, J
The application is for condonation of delay of 111 days in filing the appeal against the order passed by the Joint Registrar of Trade Marks on
29.04.2009. The matter came up before us at the Circuit Bench Sitting at Kolkata on 23.06.2011. Shri H.P. Shukla learned Counsel appeared for the
Appellant and learned Counsel Ms. Pushpam Jha appeared for Respondent No. 2.
According to the learned Counsel for the Appellant, the order of the Joint Registrar which is impugned herein was received by them on 11.05.2009.
It appears that on 26. 05.2009 they applied for a certified copy of the order which was received by them on 19.11.2009. They have filed the appeal on
23.11.2009. According to them the time taken for getting certified copy must be excluded and if it was excluded, there is no delay.
3 . The learned Counsel appearing for the Respondent strongly objected to condonation of the delay submitting that when admittedly the official copy
was received, then the person aggrieved by the order cannot obtain extension of time by adopting the methods adopted by the Appellant herein.
According to the learned Counsel for the Respondent No. 2, the time starts running from the date on which the aggrieved party had received the
order. In the present case, admittedly even as per the affidavit filed along with Form-5 the Appellant had received the order on 11.05.2009. Therefore,
time would start running from that date and there is no justification for the delay that occurred thereafter.
The learned Counsel for the Appellant relied on AIR 1968 SC 960 State of U.P. v. Maharaja Narain and Ors., and the learned Counsel for the
Respondent relied on AIR 2009 Mad 196 Allied Blenders and Distillers Pvt. Ltd., v. Intellectual Property Appellate Board and Ors.,
In AIR 2009 Mad 196, the first Bench of the Madras High Court had held that ""... In the present case, as seen above, we are concerned with a
special Act, where there are specific provisions to act in a particular manner for filing the notice of opposition to the registration as well as for filing
the counter statement. It may also be noted that it is a specialized field where specialized attorneys appear for the parties. That apart, an effective
alternative remedy is very much available to the Petitioner under the statute by filing a rectification application under Section 57 of the Act, which the
Petitioner has already filed. The only difference between the two proceedings will be that in the rectification proceedings the burden of proof will be
on the Petitioner, whereas in the opposition proceedings the burden of proof will be on the Respondent-3."" Therefore it was held that when the Special
Act provides for specific time and manner and fees for filing, the same has to be done in compliance of the Special Act and the requirements cannot
be relaxed. The first Bench, therefore, held that time cannot be extended in that case by invoking Section 5 of the Limitation Act.
6 . Section 91(3) of the Trade Marks Act, 1999 requires the Appellant to file the appeal in the prescribed form and manner and that it shall be
accompanied by a copy of the order or decision appealed against, along with prescribed fees. Rule 8 of the Trade Marks Rules, 2002 requires that the
appeal shall be accompanied by copies of the order and at least one of the copies shall be a certified copy. The word 'certified' would indicate the
official copy. Under the Act, the orders are immediately communicated to parties to the hearing and that is the official copy. The certified copy which
is referred to in the rules (Rule 190) are certified copies of the documents and cannot be understood as certified copy of the order. Therefore, when
Rule 8 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 refer to certified copy, it can only be understood as an official copy. If it
is so understood, then, the time for filing the appeal started running in so far as the Appellant was concerned from 29.04.2009 and therefore, there was
indeed a delay of 111 days.
7 . In AIR 1968 SC 960, the Hon'ble Supreme Cour considered the principle and scope of the expression ""time required for obtaining copy of order
appealed from"". The Appellant had applied for three copies of the order. He applied for one copy on November 15, 1962, one copy on December 13,
1962 and the third copy on December 21, 1962. The last two copy applications had been processed and the copies were made ready for delivery on
December 20 and 21, 1962 respectively. But as far as the first copy application was concerned, it was made ready on January 3, 1963. The
Respondent contended that since the appeal had obtained two other copies and since the appeal was beyond time, time was calculated on the basis of
those copies, the delay should not be condoned. The Hon'ble Supreme Court held:
(7) If the appellate courts are required to find out in every appeal filed before them the minimum time required for obtaining a copy of the order
appealed from, it would be unworkable. In that event every time an appeal is filed, the court not only will have to see whether the appeal is in time on
the basis of the information available from the copy of the order filed along with the memorandum of appeal but it must go further and hold an enquiry
whether any other copy had been made available to the Appellant and if so, what was the time taken by the court to make available that copy. This
would lead to a great deal of confusion and enquiries into the alleged laches or dilatoriness in respect not of copies produced with the memorandum of
appeal but about other copies which he might have got and used for other purposes with which the court has nothing to do.
In the present case, the language used is not similar to the words in the Limitation Act. The Trade Marks Act provides that the appeal should be
accompanied by an order. It is to be remembered that the Intellectual Property Appellate Board (Procedure) Rules uses the word certified copy. The
learned Counsel for the Appellant pleaded that at least there was a bonafide explanation on the part of the Appellant. He was bonafide under the
belief that the Rules applied to him. Then the Appellant should be considered as having shown sufficient cause.
In the present case, the application for the certified copy was filed within 30 days on receipt of the order and therefore, if the time taken in obtaining
the certified copy is excluded, then the appeal is not within time. But the Act does not refer to certified copy. Therefore, the rules must be considered
in consonance with the Act and if so, the word 'certified' used in the rules can only mean the official copy. Of course if the case is that the official
copy was not received, and non-receipt is proved then one will consider the issue of limitation on the facts of that case. But since in the present case
there is the genuine difficulty of understanding the rules to mean in the manner the Appellant contends that he considered, we will have to extend our
discretion in favour of the Appellant and, therefore, we condone the delay. C.O.D. No. 5/2010 is hereby allowed. Otherwise, in all cases the date of
receipt of the official order copy will alone be taken into reckoning for purposes of limitation. The Registry is directed to number the appeal. No order
as to costs.