Judgment:
(Circuit Bench Sitting at Delhi)
Order (No.166/2009)
S. Chandrasekaran, Technical Member:
1. This is a transferred application numbered as TRA/8/ 2008/PT/ CH originally instituted as SPJC No.4 of 2007 before the Honble Kerala High Court on 22nd November 2007. The learned single Judge of the Honble Kerala High Court passed an order transferring the said SPJC to this Appellate Board after the High Court was rendered devoid of every jurisdiction to entertain the matter under section 64 and 117C of the Patents Act, 1970 (hereinafter referred to as the Act) read with notification of the G.O.I - S.O 514(E) dated 3rdApril 2007.
2. Applicant filed a M.P requesting for an interim stay of Patent No.206494, until the disposal of the TRA/8/2008/PT/CH on merits. The respondent No.2 filed his counter affidavit along with a M.P stating that the order of injunction granted by the Honble High Court of Kerala was only to enable the parties to approach the Appellate Board and seek appropriate remedies and further stressed that the order of injunction, was itself, in the first place, a nullity for lack of jurisdiction.
3. The M.P filed by the applicant was posted for hearing on 13th July 2009 and the respondent No.2 in the open court filed his counter affidavit along with M.P. bearing diary No.2669 of 2009 stating that the TRA/8/2008/PT/CH before this Honble Board was invalid and liable to be removed from the file. The respondent No.2 requested the Appellate Board to pass an order dismissing the M.P. No.8 of 2009 and transferred application for revocation of the Patent.
4. This M.P. filed by the respondent No.2 was duly scrutinized by the registry and the applicant filed his counter affidavit and the matter was posted for hearing on 7th Sept. 2009 before us again. The respondent No.2/Petitioner argued that the order of transfer of the application for revocation was erroneous, as the Honble High Court does not have the jurisdiction any more to entertain any application under section 64 of the Act after the notification dated 3rd April 2007. The counsel for the respondent No.2 argued that the order passed by the Court without the jurisdiction is a nullity and in this respect he referred to Supreme Court decision in Kiran Singh Vs. Chaman Paswan, AIR 1954 SC 340 and another Administrative Tribunals decision in Sivakalai Muthu Vs. State of TN, (2008) 4 ML J 495.
5. The counsel for the Applicant / petitioner argued that the respondent No.2 was a party in the proceeding before the Kerala High Court and intentionally never contested before the High Court and further the respondent No.2 has assigned the right to the respondents 3, 4, 5 and so the respondent No.2 is estopped from contesting otherwise. Moreover, all the respondents have consented to the order of the Honble High Court transferring the case to the Appellate Board. In case the respondent No.2 is having an objection to the transfer of the SPJC to this Appellate Board, he should have filed a review petition in the High Court or else approached the Supreme Court for obtaining a relief in this matter.
6. Having heard the arguments of both the Counsel for the respondent No.2 and the applicant, we find that the provisions of section 117C of the Act come into existence after the Notification of the G.O.I dated 2nd and 3rd April 2007 regarding the forming of the Patent Bench of the Appellate Board and relevant sections coming into force forthwith. Hence the Court has no jurisdiction to entertain any such application for revocation under section 64 of the Act and the applicant should have filed his application before this Appellate Board on or after 2nd April 2007. Further, for filing the revocation application the Limitation Act does not apply and the applicant can file at any time before the Patent term expires. So the M.P. bearing diary No.2669 of 2009 filed by the respondent No.2 is disposed off with a consequent direction that the transferred appeal proceedings are void ab initio as the proceedings taken place at the Kerala High Court after the date of notification 3rd April 2007 is out of jurisdiction and as the Court has no jurisdiction to entertain such application under section 64 of the Act, the order passed by the Court in transferring the appeal is not correct and the transferred revocation appeal is dismissed with liberty to the applicant to file a fresh revocation application, if any.
There shall be no order as to the costs.