AI Structured Summary
Not yet generated for this judgment
Judgment
Z.S. Negi, J
The appellant company through Shri Praveen Nagar, the authorised signatory of the appellant, has filed an appeal against order dated 12.4.2005
passed by the Deputy Registrar of Trade Marks, Kolkata disallowing its Opposition No. KOL-81386. The appeal has been filed after expiry of the
time limit provided therefore under Sub-section (1) of Section 91 of the Trade Marks Act, 1999 and hence an application seeking for condonation of
delay has also been filed.
The reason stated for delayed filing of appeal is that the appellant is based in Indore and the counsel for appellant is in Mumbai. The appellant had
received the Memo of appeal and related documents through its Advocates on 25th/26th July, 2005 was executed and returned back to them together
with the cheque for fee payable for appeal. But due to torrential rains, which led to flash floods paralysing life first in Mumbai city and later on in
Indore city, the executed memo of appeal returned to the Advocates in Mumbai could not be located by the Advocates when they reopened their
office after floods. The documents were, thereafter, re-executed and the same were received in the office of the Advocates of the appellant in
Mumbai on 18th August, 2005.
Before discussing the averments of applicant it may be worthwhile to quote the following principle laid by the Apex Court in the case of Ramnath
Sao @ Ramnath Sahu and Ors. v. Goverdhan Sao and Ors. 2002 (3) SCC 195
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 can not 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 court 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 point and 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.
We have heard Shri C.R. Bakshi of Depenning & Depenning and after careful consideration of the application for condoning of delay, we are of
the opinion that due to natural calamity, over which there is no human control, and the resultant effect of disruption in mail delivery, including loss or
misplacement of mail, and movement of transport for some time have compounded the delay in filing the appeal. No negligence or inaction or want of
bona fide is found to be imputable to the appellant. We are, therefore, satisfied that the cause shown by the appellant constitute sufficient cause for
not preferring the appeal within the time specified under Sub-section (1) of Section 91 of the Act.
In view of the above, the application being C.O.D. No. 6/2005 is allowed. There shall be no order as to costs.