M/S. Sachdeva and Sons. Inds. Pvt. Ltd Vs. M/S. Taco Bell Corporation, California and Another - Court Judgment

(Circuit Bench Sitting at Delhi)

ORDER(No.265/10)

S. Usha, Vice-Chairman

1. The appellant in the main appeal has filed a petition to review the order dated 19.03.2010 passed by this Appellate Board. The Registry of this Board has raised the issue as to how this review petition is maintainable in view of the earlier orders of this Board in review petitions.

2. The review petition was filed stating the entire facts of the case and the merits of the appeal. The petitioner also submitted that they had raised various grounds which was not dealt by this Board as well as judgements relied on during the arguments were not considered while passing the order against which the review is preferred.

3. The matter was placed before the Board for deciding the issue of maintainability of the review petition on 24.09.2010. The counsel relied on Rule 23 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 and submitted that it is prescribed in the rules that the review petition is to be filed within a period of two months from the date of order as well a fee of Rs.3000/- is prescribed. The counsel relied on the following judgements:-

(i) 2008(1) CIVIL COURT CASES 347 (SC) Mohd.Akram Ansari Vs. Chief Election Officer and Ors - A point not dealt with in the judgement is presumed to be not pressed at the time of arguments though pleaded. This is a rebuttable presumption. In case of a grievance that a point was pressed but not dealt within the judgement an application has to be filed before the same Judge / Court / Bench.

(ii) 1982 (2) R.C.R. (Rent) 193 M/s Aggarwal Hardware Works Pvt. Ltd. Vs. Kumari C.V.C. Vasantha - Right to file an appeal is a substantive right but once that right is exercised, how the appeal is to be decided is a procedural matter.

(iii) 2002 (25) PTC 50 (Delhi) Virendra Sethi Vs. Kundas Das and Ors. - Because it many not always be of any interest to any lawyer or agent to raise such objection and only the concerned or affected persons can at best be expected to raise such an objection. In any case it was the duty and responsibility of the concerned authorities under the Trade and Merchandise Marks Act, 1958 to ensure that the advertisement is published properly and nothing is left vague or uncertain.

(iv) Diary No.3482/2009/TM/IPAB Amalco Herbal Products Vs. Three-N-Products Pvt. Ltd. – 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.

(v) 2010 (43) PTC 442 (Del) Rajnish Aggarwal and Ors. Vs. Anantam – The registration in class 35 is not correctly granted in accordance with the Trade Marks Rules, 2002, hence the defendant cannot take the benefit of sections 28(3) and 30 of the Trade Marks Act, 1999. Thus there is no bar to the suit for infringement against the defendant.

(vi) 2009 AIR (Gauhati)121 Pranab Dhar Vs. Rajesh Deb and Anr. – Procedure to be followed - When the legislation in a Statute conferred a power either on a Court or on a Tribunal to adopt its own procedure for deciding an issue, then that tribunal is not debarred to review its order in the interest of justice.

(vii) 2010 (20 CIVIL COURT CASES 359 (RAJASTHAN) – Smt.Gavra Devi Vs. State of Rajasthan and Ors. – Courts must give reasons as to why the judgement cited is not applicable in the facts and circumstances of the case.

(viii) 1993 (5) J.T. 27 - S.Nagaraj Vs. State of Karnataka – Any order passed by a court of law so by the higher court and specially this court where decisions are declarations of law are not only entitled to respect but are binding and have to be enforced and obeyed strictly. No court much less an authority however high can ignore it. Any doubt or ambiguity can be removed by the court which passed the order and not by authority according to its own understanding.

4. We have heard and considered the arguments of the counsel. Before we deal with the matter and give our finding we would like to condemn the behaviour of the counsel in the Court. The counsel was passing unwarranted comments about the Members in the Bench. The records placed will speak for it. The counsel first started asking the Board if he should argue as no notice for todays hearing was received either by his office or by his client. The Board was wondering as to what the counsel was submitting as he was aware of the hearing and being present that question ought not to have been raised. In fact on the earlier occasion i.e. on 6.8.2010 when the matter was listed the counsel for the petitioner did not appear whereas had sent a request on Form 5 seeking adjournment on the ground that “the under-signed counsels (though signed by one counsel) are not in a position to attend the aforesaid date of hearing on 6.8.2010 because of some personal difficulties. The matter was adjourned even in the absence of the counsel. It is worthwhile to quote in this context the observation of the learned Judge of the Gujarat High Court in AIR 2004 Gujarat 99 Jai Ambe Ice Factory Vs. Recovery Officer at para 7 “………… In my view, merely because a telegram is sent by the lawyer would not be sufficient ground to interfere with the powers exercised by the Tribunal, because if the litigants or the lawyers are seeking adjournments in any of the matters, proper procedure is to move appropriate application either personally or through some authorized representatives at the time when the matter is called out or is taken up for hearing by the Tribunal. Merely because a telegram is sent, it cannot be asserted as a right that the Tribunal should have considered the same, because normally when the proceedings are going on such type of correspondence would not be entertained. In a given case, if it is brought to the notice of the Tribunal that such telegram is there, the tribunal may consider the matter for adjournment. However, it is not necessary that merely because the telegram is sent to the Registrar of the Tribunal, the Tribunal would be required to exercise its judicial power upon such correspondence or such telegram in the mater is exercising in the pending appeal.”

5. In the given circumstances and based on the above observation, we are of the view that the petitioner cannot sit back in his office and expect this Board to inform him of the next date of hearing. In the interest of his client the counsel should have taken steps to find out the next date of hearing. It is also pertinent to mention that the usual practice of this Board is to send notices to clients and the counsel if it is for the first time, if already listed and adjourned no notice is sent and it is also put up in the website of this Board regularly. In such a case, the counsel being present and prepared to argue before us should not have raised the question.

6. The main matter i.e. the original appeal was heard and orders reserved on 02.02.2010. The orders were pronounced on 19.03.2010. The main appeal was against the order of the Registrar of Trade Marks dismissing the opposition under Rule 50(2) of the Trade Marks Rules, 2002.

7. On 30.03.2010 after the orders were sent to the counsel, the counsel wrote to the Registry of this Board requesting for the certified copies of the “case laws and / or references” as relied on and submitted by them in support of their case at the hearing on 02.02.2010. They also stated that they are prepared to pay the necessary copying fee, if required by the Registry. The Registry replied back on 01.04.2010 stating that the certified copies of case laws or references placed before the Board during hearing are not supplied to the counsel. Even before this reply could be sent the counsel again on 31.03.2010 and 21.04.2010 had written letters to the Registry stating at “the notes in the handwriting of the Judge” as well as the order sheet, pleadings, judgements and all the documents received n by the court form part of the court records, according to Part A and Chapter 16 of the Delhi High Court Rules (Photo copy enclosed) the copies of the aforesaid/ desired case laws and / or references can thus duly be furnished to us and cannot hence be denied by the Registry to be supplied to us. The registry reiterated what was stated in its letter dated 01.04.2010 by letters dated 15.04.2010 and 25.05.2010.

8. On 24.5.2010, the instant review petition was filed. The matter was placed before the Board to enable the counsel to satisfy as to the maintainability of the review petition. The counsel was only trying to argue the matter on merits of the case and after hearing the case orders were reserved. On 25.09.2010 after the orders were reserved, the counsel had sent a letter along with the written submissions which was not directed by this Board while reserving orders. (A copy of the letter is annexed for clear reference). The comment of the counsel is unwarranted. The counsel on appearing before us did not seek adjournment but only wanted to know if he was to argue without a notice, we made it clear that when he was there he could get along with the matter. To say we forced the counsel or hurriedly heard the matter does not hold good, as the counsel was prepared to argue the matter with the relevant judgements in support of his case which has been mentioned in para 3 of this order.

9. We shall now deal with the judgements referred to by the counsel in support of his case as regards the issue of maintainability – Mohd. Akram Anasaris case (supra) this was relied on to say that the grounds relied on and pleaded were not considered and dealt with in the impugned order under challenge by the review petitioner. We think this case has no relevance to the case on hand as it is for the counsel to satisfy the Board the powers of the Board whether their own decision could be reviewed when there is no such provision in the Act M/s Aggarwal Hardwares case (supra) was relied on to say that power of review is a procedural matter. In this matter it is under the Delhi Rent Control Rules 1959 – Rule 23 it is said that the provisions of the Code of Civil Procedure have virtually become part and parcel of the Act which again has no relevance to the issue on hand. Virendra Sethis case (supra) this is matter where the application which was advertised in the Trade Marks Journal was not clear and the court held that the concerned authorities to ensure that the advertisement is proper and not uncertain. Amalco Herbal case (supra) – no doubt this is a matter pertaining to the powers of the Board to review. This Board had in fact held that the Act did not provide any provisions to review its own decision and it was held that the Board has no powers except only in the case of procedural defect. In the instant case, we do not think there is any procedural defect. Rajnish Aggarwals case (supra) has no relevance to the case on hand as it relates to an infringement action. Pranab Dhars case (supra) – in this case the statute has conferred powers on the claims Tribunal to adopt its own procedures unlike in the present Act and therefore the Gauhati Court has distinguished the judgements of the Supreme Court. Gavra Devis case (supra) not relevant to the issue on hand. S.Nagarajs case (supra) – review is exercised to remove an error and not for disturbing finality which case is not relevant here. In fact, we observed that if really they were aggrieved by the order, they could as well approach the next forum for their remedy, for which the counsel had no answer.

10. We shall deal with the powers of the Appellate Board as to reviewing its own decision or order. This Board has clearly held in a number of matters that the Board has no review powers to review its own order except for any procedural defect or mistake committed by the Board. Rule 23 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 quoted by the petitioner when considered provides for a time limit of two months for a review petition to be filed and also the form in which it is to be filed. This Rule does not confer any powers on the Board to review its own orders.

11. In this regard we quote the observations made this Board in a similar matter in R.P. No.09/07 in M.P.No.131/06 in ORA/50/06/TM/KOL

9. In Grindlays Bank V. Central Government MANU/SC/0308/1980 the Court was required to consider, inter alia whether the Labour Tribunal had any jurisdiction to set aside the ex-parte award particularly when it was based on evidence. The objection as to the jurisdiction of the Tribunal, raised before the Court was in the following terms:-

“It is contended that neither the Act nor the Rules framed thereunder confer any powers upon the Tribunal to set aside an ex parte award. It is urged that the award although ex parte, was an adjudication on merits as it was based on evidence led by the appellant, and, therefore, the application made by respondent No.3 was in reality an application for review and not a mere application for setting aside an ex parte award”.

The Supreme Court held as follows:-

“It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so . But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancilliary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition.”

The expression, ‘review, it was held by the Supreme Court, in the above case is used in two distinct senses, namely “(1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record”. It was further held, that it is in the latter sense that the Supreme Court in Patel Narshi Thakershi Vs. Pradyumansinghji MANU/SC/0433/1970 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.

10. The decision in Patel Narshi Thakershi V. Pradyumansinghji MANU/SC/0433/1970 (AIR 1970 SC 1273) is an authority for the proposition that the power of review is not an inherent power, it must be conferred by law either specifically or by necessary implication.

12. During course of the arguments the counsel submitted that the grounds raised in the memo of appeal was not considered while passing the order, so there is a procedural defect and the order is to be reviewed. Based on the contention of the counsel we are of the opinion that review is based on merits of the case and not on any procedural defect. Even though the matter was placed before us for deciding the issue as to the powers of review and not the review petition on merits, the counsel was trying to justify by placing the facts of the case on merits.

13. When the Act or the Rules do not confer power on the Board to review its own orders or decisions, we are of the view that this Board has no powers to review its own orders. The petition is therefore not maintainable and is dismissed with no order as to costs.