AI Structured Summary
Not yet generated for this judgment
Judgment
S. Usha, J
1 . The above diary No. 1848/09 has been filed to dispense with / exempt the fees required to be paid for the delay in filing the appeal against order
dated 11.02.2003.
2 . The facts of the case are-The Appellant herein preferred a review petition in an order passed in an opposition proceedings No. AMD-58576 in
application No. 603032 in class 30 by the Assistant Registrar. The review petition was filed on 11.02.2004 against the order dated 11.12.2003. The
Assistant Registrar rejected the review petition on 5.5.2005. The order rejecting the review petition was challenged before this Appellate Board. On
19.03.2008, this Board had rejected the said appeal. On 01.08.2008 the Appellant has preferred an appeal against the original order dated 11.12.2003
in S.R. No. 261/08/TM/IPAB.
3 . The Registry of this Board had issued defect notice to the Appellant raising the issue as to filing of an application to condone the delay with the
prescribed fees. The only contention of the Appellant is that they had already filed Form-5 to condone the delay, then a Form-3 for extension is not
required. As per the settled principles of law when a review petition is pending an appeal is not maintainable. So till the date of receiving an order on
the review petition there is no delay in filing the appeal. The appeal against the order of review petition was dismissed by this Board on 19.03.2008
which was received by the Appellant on 29.04.08. Therefore, there cannot be delay against the order of the Registrar and no fee is required to be
paid, if at all it is to be paid, delay is to be calculated from 29.04.2008. This Board has the power to dispense with the fees required to be paid.
Therefore, this application be allowed with exemplary costs.
The counsel reiterated what was stated in the application for dispensing with the payment of the necessary fees for condoning the delay.
On hearing the counsel and on going through the application for dispensing with the fees for condonation of delay, it is seen that the Appellant has
not followed the procedures. We are aware of the observation of the Apex court and other courts that in a matter to condone the delay in filing a
matter of a very liberal view is to be adopted. Even in the case of short delay say 2 or 3 days, the sufficient reason is to be taken into consideration
and the case to be decided on that ground alone. Here the reason is that the review was preferred and an appeal against that order and so there has
been a delay. Even if that reason is to be accepted the application can be allowed only if necessary fees prescribed is paid and not otherwise.
The contention that this Board has powers to exempt / dispense with the payment of necessary fees cannot be accepted in any case. When the
statute prescribes an act to be done, it has to be followed and cannot be overlooked for no reason. The Appellant in this case has not paid the
necessary fees as contemplated in the statute. Therefore, the miscellaneous petition is dismissed as not maintainable as there is no provision to
dispense with the paying of the fees. No order as to costs.