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Judgment
Z.S. Negi, J
1 . This order disposes of the Miscellaneous Petition No. 31/2008 in Diary No. 181/2008/TM/IPAB (since subsequent to allowing of M.P. No.
31/2008, the same was taken on record and allotted R.P. No. 1/2009) and the R.P. No. 1/2009.
The applicant herein filed on 24.12.2007 an application in Form 3 for extension of time for filing the Review Petition and the Registry by its letter
dated 28.12.2007 directed the counsel for the applicant/petitioner to file the Review Petition along with a proper miscellaneous petition for condonation
of delay in filing the Review Petition. Accordingly, the petitioner/applicant filed the Review Petition and the application (being M.P. No. 31/2008) for
condonation of delay in filing the Review Petition. Since the Review Petition was filed beyond the prescribed period of limitation, the same was
allotted Diary No. 181/2008/TM/IPAB.
3 . The facts leading to the filing of the application and Review Petition is that the applicant/petitioner filed the Miscellaneous Petition No. 6 of 1999
before the High Court of Judicature at Bombay under Section 56 read with Section 107 of the Trade and Merchandise Marks Act, 1958 for
cancellation of trade mark 'MAGGI' under No. 444095, registered in the name of Swaraj Industrial & Domestic Appliances Private Limited. The said
Miscellaneous Petition No. 6 of 1999, having been transferred by the High Court of Judicature at Bombay to the Intellectual Property Appellate Board
in pursuance of the provisions of Section 100 of the Trade Marks Act, 1999, the same was renumbered as TRA/23/2005/TM/MUM by the Appellate
Board.
The transferred rectification application came up for hearing on 09.01.2007 before the Circuit Bench of the Appellate Board sitting at Mumbai
when the learned Counsel for the applicants filed a copy of consent terms dated 18.07.2003 agreed between the parties in Petition No. 91/1995 on the
file of High Court of Judicature at Bombay and made an oral request to the Circuit Bench to pass appropriate orders thereon. The learned Counsel for
the respondent No. 1 also agreed with the said request of the learned Counsel for the applicants. This Appellate Board passed order to the effect that
no order can be passed based on the consent terms as agreed between the parties, because the order of the Appellate Board is in rem not in
personam and as such the matter was reopened for final hearing.
5 . The application came up for hearing on 18.09.2007 when Shri H.W. Kane, Advocate appeared on behalf of the applicants and Shri P.N. Poojari,
Advocate appeared on behalf of the respondent No. 1. The learned Counsel for the respondent No. 1 submitted that the consent terms as agreed
between the parties in Petition No. 91/1995 had been recorded by the High Court on 18.07.2003 and also filed a copy of order sheet of High Court of
Judicature at Bombay dated 18.07.2003 whereby the consent terms were taken on record and marked 'X' for identification. Both the learned Counsel
requested that the matter be adjourned for 19.09.2007 to enable them to produce a mutually agreed draft order. Accordingly, the matter was
adjourned to 19.09.2007. However, they failed to produce any agreed draft order on 19.09.2007. In view of the aforesaid submission of the learned
Counsel for the respondent No. 1, which submission was not objected to by the learned Counsel for the applicants, the rectification application was
closed and consigned to record by order dated 15.10.2007 passed by the Appellate Board. Now, the applicant/petitioner has filed the Review Petition
against the aforesaid order of this Appellate Board and also sought condonation of delay in filing the Review Petition so that the same could be taken
on record.
6 . Copies of the Review Petition and the Misc. Petition were served on the respondents No. 1 and 2 in the first half of March, 2008 for filing their
reply but no reply have been filed by the respondents. Though the miscellaneous petition was listed for hearing on 2.2.2009 and hearing notice sent by
Speed Post to respondent No. 1 has been received back with the postal remark ""Unclaimed"" and notice sent by Speed Post to respondent No. 2 has
also been received back with the postal remark ""Left"". Learned Counsel Shri Hemant Singh, instructed for the petitioner/applicant by W.S. Kane &
Co., Advocates, Solicitors & Notary, argued for both the matters (Diary No. 181/2008 and M.P. No. 31/2008).
In the application which was taken up first, the learned Counsel for the applicants reiterating the averments made in the application submitted that
after receipt of the order of the Appellate Board by the Attorneys of applicants', the said Attorneys sought instructions from the applicants' General
Counsel in New Delhi and the General Counsel in turn discussed the matter with the 2nd applicant and 2nd applicant discussed the matter with the 1st
applicant in Switzerland and as such it took longer time to co-ordinate and give instruction to the applicants' Attorney at Mumbai and thereafter the
Registry of the Appellate Board directed to file proper Misc. Petition for condonation of delay. The learned Counsel further submitted that the
Attorneys of the applicants were also busy in the court matters, therefore, the Review Petition could not be finalised and filed earlier. He submitted
that the delay in filing may be, in the interest of justice and equity, allowed, otherwise great loss, harm and injury will be caused to the applicants.
Learned Counsel mainly contended in the Review Petition that the order passed by the Appellate Board is mistake and an error apparent on the
face of the documents filed and submissions made by the counsel for the parties before the Appellate Board (more particularly as set out in
paragraphs 4 and 5 of the Review Petition). Learned Counsel with all his vigour submitted that this Appellate Board may be pleased to review the
order dated 15.10.2007 and pass appropriate order to the effect that the registration of trade mark No. 444095 in class 7 stands cancelled and that the
opposition No. BOM - 8740 shall proceed further in accordance with law.
Having heard the learned Counsel carefully in regard to Miscellaneous Petition No. 31/2008, it would be appropriate to refer the principles laid
down by various Courts in various judgments. Though it is not feasible here to cite all the judgments but on a conspectus reading of the various
judgments the principles laid down is 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. In the case on hand, there is
material on record to impute that the applicant lacked bonafides or deliberately delayed in filing the review petition or they have attempted to hoodwink
this Appellate Board or the attitude of the applicant was casual. The applicant has sufficiently explained that the delay was caused due to consultation
between the counsel and the 2nd applicant, who are located at different places and then final consultation with the 1st applicant in Switzerland, etc.
The reasons for delay explained by the applicant have not been objected to by the respondents as they have not chosen to file reply to the application.
As it was not brought to our notice that if any right is accrued to the respondents which will suffer because of entertaining the Review petition beyond
the period of limitation and also in view of the fact that the parties have settled the dispute by consent terms which was taken on record by the High
Court of Bombay, we do not find it necessary to award any costs to the respondents. The result of the foregoing discussion is that we are satisfied
that there is sufficient cause for condoning the delay in filing the Review Petition; accordingly, we condon the delay in filing such Petition beyond time.
After having passed the above order, this Appellate Board has taken on record the Diary No. 181/2008/TM/IPAB as R.P. No. 1/2009.
After hearing the learned Counsel for the Review Petitioner and perusal of the record, we are unable agree with the learned Counsel, firstly
because no review lies on merits unless a statute specifically provides for and secondly the review sought is not due a procedural defect or the
inadvertent error committed by this Appellate Board. In the case of Narshi Thakershi v. Pradyumansinghji MANU/SC/0433/1970, the Hon'ble
Supreme Court held that no review lies on merits unless a statute specifically provides for it. It was also held that when a review is sought due to a
procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such
powers inheres in every Court or Tribunal. This Appellate Board has no power to review its own orders passed on merits. In the case of Safari Bikes
Limited v. Safari Cycles Pvt. Ltd. and Ors. 2008 (36) PTC 650 (IPAB) wherei review was sought on the merits of the order of the Appellate Board,
the Board while dismissing the review petition observed at paragraph 12 thus:
Review applicant herein is not seeking a review of our orders due to a procedural defect or inadvertent error committed or even on the grounds of
violation of principles of natural justice. As already noticed neither the Trade Marks Act, 1999 nor the Rules framed there under confer power on this
Board to review its own orders.
It will be of interest to note that there in no procedural defect or any inadvertent error committed by this Appellate Board has been made out in the
petition. The fact is that this Appellate Board has not passed the order dated 15.10.2007 on merits but only ordered for closing the rectification
application observing that no order is required to be passed, as the consent terms had been taken on record by the Hon'ble High Court on the 18th day
of July, 2003. The Consent Terms in Petition No. 91 of 1995 are very clear which reads as under:
1 . By consent the Registrar's Orders dated 13-1-1994 and 17-08-1994 are set aside and the matters are remanded back to the Respondent No. 2 to
decide the same on merits in accordance with law. The parties are allowed to adduce their respective evidences, if any.
The Petition is made absolute in terms of prayers (a) and (b) thereof.
Both the parties will bear their own costs.
In the light of the above Consent Terms the matters stood remanded back to the Registrar, no order was required to be passed by this Appellate
Board as the desired relief has been agreed to and the parties could have approached the Registrar for appropriate action on the basis of the recorded
Consent Terms.
In view of the above, we dismiss the Review Petition without any order as to costs.