Judgment:
(Circuit Bench at Kolkata)
Honble Shri Z. S. Negi, Chairman:
This appeal, which has not yet been taken on record by reason of filing beyond the limitation period specified under section 91(1) of the Trade Marks Act, 1999( hereinafter referred to as the Act), is directed against the order dated 20.2.2007 passed by the Deputy Registrar of Trade Marks allowing opposition No. CAL- 212620 and refusing trade mark application No.788915 in class 30. The appellant has filed the present application seeking condonation of delay of 27 days in filing the appeal and for taking the appeal on record.
2. It is stated in the application that the impugned order was received on 23.2.2007 by the Trademark Attorney-on-record of the appellant and the statutory limitation period for filing appeal expired on 23.5.2007. After careful perusal and analysis of the impugned order, the same was forwarded along with detailed comments thereon to the appellant on 6.3.2007. The appellant after detailed inter-departmental discussions instructed its Attorneys-on-record on 18.4.2007 to take steps for filing the appeal. The Attorneys on record proceeded to draft the appeal and extensive market investigation in various metropolitan cities to ascertain the availability of respondents products bearing the trade mark NUTRI-GRAIN as claimed in the opposition proceedings. In the meanwhile, the counsel who has been handling the matter since its inception had to go to Chicago from 27.4.2007 to 4.5.2007 to attend the International Trademark Association Annual Meeting. The drafting of appeal and vetting by a senior counsel was completed after the return of the counsel from Chicago and thereafter forwarded to the appellant for comments on or around 17.5.2007. The appellants after studying the appeal sought certain amendment which could not be incorporated as the senior counsel was not available due to summer vacation of the High Court at Calcutta from 19th may to 2nd June, 2007 and the counsel handling the matter also went to Assam from 24th May to 3rd June, 2007 to attend some urgent personal work. The appeal could be redrafted after 3rd of June and got the redrafted appeal vetted from the senior counsel. The appellant gave its final approval on 15.6.2007 and the appeal paper book was prepared and the same was filed on 23.6.2007.
3. The application for condonation of delay came up before us for hearing on 17.6.2008 when Ms. L.B. Singh and Mr. D.J. Ghosh, Advocates appeared on behalf of the appellant. Learned counsel for the appellant submitted that the process of investigation, inquiry, correspondence, sorting and collation of relevant information has consumed considerable time. She further submitted that an enormous amount of time was also spent in obtaining legal advice, approval of final draft of the appeal and preparation and compilation of documents. The appellant was always diligent and there was not lacking on its part. The delay was owing to the reasons and circumstances beyond the control of the appellant and was not malafide, deliberate or unnecessary. The learned counsel also submitted by condoning delay, no harm, injury or prejudice would be caused to the respondent No.1. Relying upon the decision in Ram Nath Sao @ Ram Nath Sahu and Ors. V. Gobardhan Sao and Ors., (2002) 3SCC 195, Koninklijke Philips Electronics NV v. Kay Kay Home Appliances Pvt. Ltd. and Anr., 2004 (29) PTC 601 (IPAB) and Ruchi Soya Industries Limited v. Star Food Products, The Deputy Registrar of Trade Marks and The Controller General of Patents, Designs and Trade Marks, 2007 (34) PTC 133 (IPAB), the learned counsel urged that in the interest of justice, the negligible delay may be condoned and the appeal be admitted.
4. Section 91 of the Act deals with appeals to the Appellate Board. Sub-section (1) of that section provides appeal to the Appellate Board may be preferred within three months from the date on which order or decision sought to be appealed against is communicated to the person preferring the appeal. Sub-section (2) of that section which prohibits admission of an appeal if it is filed after the expiry of the period specified under sub-section (1). However, an exception has been carved out to sub-section (2) providing that an appeal may be admitted after the expiry of the period specified therefore, if the appellant satisfies the Appellate Board that he had sufficient cause for not preferring the appeal within the specified period. The Courts have held that the expression âsufficient causeâ occurring in statutes in connection with limitation should receive liberal constrution to do substantial justice. In the case of Ramnath Sao @ Ramnath Sahu and Others (supra), the Apex Court has laid the following principles at para 11:-
â11. Thus it becomes plain that the expression âsufficient causeâ within the meaning of section 5 of the Act or Order 22 rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute âsufficient causeâ or not will be dependent upon facts of each case. There can not be straightjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation, furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the court should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable point and facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.
This Appellate Board while considering an application for condonation of delay in the case of Koninklijke Philips Electronics NV (supra) it was observed at para 8 as under:-
â8. From the above principle laid down by the Apex court, the legal position is: (1) the word âsufficient causeâ should receive liberal construction to do substantial justice; (2) What is the sufficient cause? is a question of fact in a given circumstance of the case; (3) it is axiomatic that condonation of delay is the discretion of the court; (4) length of delay is no matter, but, acceptability of the explanation is the only criterion; (5) the rules of limitation are not meant to destroy the rights of the parties, but, they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly; (6) if the explanation does not smack of malafides or it is to put forth as part of the dilatory strategy, the court must show utmost consideration to the suitor; (7) if the delay was occasioned by the party deliberately to gain time, the court should not forget the opposite party altogether.
5. With the above principles in view, we have to consider the explanation given by the appellant in the application and consider as to whether the delay can be condoned. It is explained in the application that though the appellant was diligent in its action but the process of investigation, inquiry, correspondence, sorting and collection of relevant information consumed considerable time. The appellant has annexed documentary evidence to prove the veracity of the reasons given in the application which caused delay in filing the appeal. A copy of e-mail dated 18.4.2007, copies of Boarding Passes and copies of E-tickets of Air Deccan corroborate reasons for the delay mentioned in the application, that the decision to file appeal was conveyed to the attorneys-on-record on 18.4.2007 and the boarding Passes and e-ticket corroborate the fact the counsel handling the matter has been to Chicago and afterwards to Assam. The High Court at Calcutta had summer vacation is a matter of public knowledge, therefore requires no proof. On a careful consideration of the application for condonation of delay, we find that the delay is neither wanton nor deliberate and we are of the view that no negligence or inaction or want of bona fide is found to be imputable to the appellant. We are, therefore, satisfied that the cause shown by the appellant constitute sufficient cause for not preferring the appeal within the time specified under sub-section (1) of section 91 of the Act.
6. In view of the above, the C. O. D. No.3/2007 is allowed with the direction to the Registry to admit the appeal. However, there shall be no order as to costs.