Judgment:
ORDER (No.199/2009)
S. Usha, Vice-Chairman:
1. Miscellaneous Petition No. 206/2009 is filed by the rectification applicant/petitioner for bringing on record the change in the name of the applicant as Rana Steels Pvt. Ltd., instead of Rana Steels (A unit of K.K. Steels Ltd.).
2. Miscellaneous petition No. 224/2009 is filed by the rectification applicant/petitioner for taking on record the evidence/documents filed on 04.07.2008 either by itself or in rejoinder.
3. Both the miscellaneous petitions were taken up together for arguments on 21.10.2009 at Chennai.
Miscellaneous Petition No. 206/2009
4. The petitioners who were earlier Rana Steels ( A unit of K.K. Steels Ltd.) have changed to Rana Steels India Ltd. The petitioner has taken necessary steps to bring on record the change before the concerned authorities. The fresh Certificate of Incorporation before the Registrar of Companies, recordal of the change before the Income tax Department, Central Excise and other departments have been produced before us in proof. The change in the name does not affect the merits of the case as well as no prejudice will be caused to the respondent if this petition is allowed.
5. The respondent herein filed their counter to the miscellaneous petition merely denying the averments made in the petition and also on the merits of the main rectification application.
6. During the course of arguments both the counsel reiterated what was stated in the miscellaneous petition and the counter.
7. We have considered the arguments of both the counsel. We understand that this miscellaneous petition is to have the changed name brought on record. We only see that the name Rana Steels has been changed to Rana Steels India Ltd., which change if recorded will in no way prejudice the rights of the respondent. The necessary changes have also been recorded before the concerned authorities for which sufficient proof has been placed before us. The objection of the respondent, in our opinion was only for the purpose of objecting the same.
8. We therefore, are of the view that no loss or prejudice would be caused to the respondent if this petition is allowed and necessary changes be brought on record. The miscellaneous petition is accordingly allowed. The petitioner/applicant is hereby directed to file an amended copy of the rectification application serving a copy on the other side within three weeks from the date of the receipt of this order. No order as to costs.
Miscellaneous Petition No. 224/2009
9. This miscellaneous petition has been filed to take on record the documents which were rejected by this Appellate Board in miscellaneous petition No. 122/2008, in view of the recent judgement of the Delhi High court dealing with the powers of the Appellate Board extending the time for taking on record the documents/evidence.
10. The respondent did not file any counter but the counsel advanced his oral arguments.
11. The counsel for the petitioner submitted that there was a change in law and hence the same was placed before this Board. The counsel for the respondent submitted that there was no change in law but there was a different interpretation of law.
12. We have considered the arguments of the counsels and have gone through the judgement of the Honble High Court of Delhi in W.P. (C) 8801-02/2009. We find it worth to quote some of the observations of the High Court here â
â5. It is well settled that quasi-judicial tribunals on procedural matters are entitled to adopt a procedure which they feel is just and fair. Unless there is a specific or implied ban on prohibition by the state, a quasi judicial tribunal has flexibility and can follow procedure, which is fair and complaint with the principles of natural justice. Every procedure is acceptable and permissible until it is shown to be prohibited by law.â
â7. Courts and tribunals during hearing of any case do pass orders fixing and granting time and giving directions to the parties like fie documents, replies etc. The courts or the tribunals in such cases retain the power to extend the time granted, unless there is a specific ban or prohibition in the Act or the Rules. Time once fixed by the Court or the tribunal is not sacrosanct or the final word. These orders or directions fixing the time for compliance are procedural orders and in terrorem and are passed for a purpose to avoid delay and expedite the proceedings. Courts or tribunals do have the power to extend the period/time fixed by them. Extension of time does not amount to review of the earlier order.â
â13. Rules of procedure, it is well settled, are handmaid of justice and are normally treated as directory and not mandatory unless legislative intent is opposite. Most of the procedural rules are enacted with the object to ensure expeditious trial and do not normally impose a prohibition and bar on the power of the court/tribunal to extend time. A prohibition or bar requires a penal consequence which should flow from non-compliance of a procedural provision. In Kailash versus Nankhu AIR 2005 SC 2441 AND Salem Advocate Bar Association, Tamil Nadu versus Union of India AIR 2005 SC 3353 it has been held that there may be many cases where non-grant of extension would amount to failure of justice. The object of procedural rule is not to promote failure of justice. Procedural rules deserve to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power to extend the time.
14. In the impugned order, IPAB has referred to Rule 14 of the Intellectual property Appellate Board (Procedure) Rules, 2003 which reads as under: -
â14. Extension of time.- (1) If the Appellate Board is satisfied, on an application made to it in the prescribed Form 3 under these rules, that there is sufficient cause for extending the time for doing any act prescribed under these rules (not being a time expressly provided for in the Trade Marks Act, 1999), whether the time so specified has expired or not, it may subject to such conditions as it may think fit to impose, extend the time and inform the parties accordingly.
(2) Nothing in sub-rule (1) shall be deemed to require the Appellate Board to hear the parties before disposing off an application for extension of time and no appeal shall lie from any order of the Appellate Board under this rule.â
(emphasis supplied)
15. The aforesaid Rule permits and allows IPAB to extend the time for doing any act prescribed under the IPAB Rules whether such time as specified has expired or not. Thus IPAB has been given power to extend the time even if the time is specifically fixed under the Rules but cannot extend time fixed under the provisions of the parent Act. It will be incongruous to hold that IPAB has power to extend the time fixed under the statutory Rules but is functus officio and barred from extending time fixed in an order or direction given in an earlier order passed by them. It follows that IPAB has the power to extend the time even when it has fixed a specific time in their earlier order. Rule 14 certainly does not bar or expressly or impliedly prevent the IPAB from extending time fixed by them in an order. IPAB retains inherent right and power to extend time. IPAB is required to follow fair and just procedure. Section 92 of the Act gives wide discretion to IPAB in following and adopting its own procedure but the procedure should be fair and prevent injustice. Principles of natural justice do not state that the time once fixed by the Court or forum cannot be extended.â
13. On the lines of observations made in the writ petition above, we are of the view that the documents filed can be taken on record. The reason for the filing at a later date was that they were not in their possession and were of subsequent development. We, therefore, direct the Registry of this Tribunal to take on record these documents (Exhibit A10 to A15). Time granted to the respondent to file reply, if any, within three weeks from the date of receipt of this order. Miscellaneous petition No. 224/09 is accordingly allowed.