M/S Karnataka Cooperative Milk Vs. M/S. N. Anand and A.Narsimha Rupesh Anand and Another - Court Judgment

Excerpt:
trade marks act, 1999 section 91, sub-section (1) - limitation act section 5 -honble shri z.s.negi, chairman: the above appeal is directed against the order dated 13.08.2007 passed by the deputy registrar of trade marks, chennai whereby she dismissed the opposition no. mas-194405 and allowed the application no. 982285 in class 29 to proceed for registration. the appellant has also filed the present miscellaneous application (for the sake of convenience, the applicant shall hereinafter be referred to as the appellant) for condoning the delay in filing the appeal. 2. the appeal has been filed beyond the time limit provided therefor under sub-section (1) of section 91 of the trade marks act, 1999 (hereinafter referred to as the act) and hence the application on hand filed seeking for condonation of delay of 77 days. the reason stated for delayed filing of appeal is that the second respondent passed identical orders in two oppositions filed by the appellant against the same respondent herein. the appellant has though filed the appeal against the order in respect of opposition no mas-194019 within the limitation period, the present appeal was not filed due to oversight within the prescribed period of limitation and the appellant was under the bona fide impression that appeal against the orders in both the oppositions have been filed. the appellant realised, that the appeal against one order has not been filed, only when they found the original order in the opposition no. mas-194405 dated 13.08.2007. it is further stated that the delay in filing the present appeal is neither wilful nor wanton and the same occurred due to bona fide belief here before mentioned. 3. we have heard shri t.d. selvan babu, advocate who appeared for the appellant and shri t.k. ramkumar, advocate who appeared for the first respondent. learned counsel for the appellant submitted that due to bond fide impression that appeal has been preferred against both the identical orders, as specified in the application, the appellant could not file the appeal within the time prescribed by the statute and soon after the mistake was realised by the appellant immediate steps were taken by the appellant to file the present appeal. it was submitted that the appellant has furnished the explanation for the delay, the same should be accepted and delay condoned in the interest of justice. he fortified his submission by placing reliance upon the decision of the honble supreme court in the case of ramnath sao @ ramnath sahu and others vs. goverdhan sao and others, 2002 (3) scc 195, wherein it was held that 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. he further submitted that no negligence or inaction or want of bona fide is imputable to the appellant. he also submitted that though the delay in filing the appeal is about 77 days, but the length of delay is no matter, acceptability of explanation is the only criteria. learned counsel in support of his submission placed reliance upon the judgment of honble supreme court in the case of n. balakrisnan vs. m. krisnmurthy, 1998 (7) scc 123. 4. on the other hand, learned counsel for the respondent submitted that the application for seeking condonation of delay in filing the present appeal is frivolous, devoid of any merits, not maintainable in law and complete abuse of the process of law and as such liable to be dismissed in limine with exemplary costs. he submitted that the explanation furnished by the appellant is preposterous and absurd since no appeal could have been filed without their signature and this shows a clear admission of gross negligence in filing the belated appeal on the part of appellant and such callous attitude and negligence cannot amount to bona fide reasons for not filing the appeal within the prescribed period of limitation. he went on to submit that any petition for condonation of delay can be filed only for genuine delays which are beyond the control of the defaulting person. besides this, the statement of case, accompanying memorandum of appeal, is very vague and each and every days delay has not been explained by the appellant and in the absence of such details, the delay cannot be condoned as the circumstances of the delay is purely due to the appellants conduct and not due to any circumstances beyond the control of the appellant. 5. before discussing the averments of appellant and submission of learned counsel for both the parties, it may be worthwhile to quote the following principle laid by the apex court in the case of ramnath sao @ ramnath sahu and others v. goverdhan sao and others, 2002 (3) scc 195:- ‘11. thus it becomes plain that the expression “sufficient cause” 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 “sufficient cause” 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. another judgment of apex court worth mentioning is n. balakrishnan v. m. krishnamurthy reported in 1998 (7) scc 123 wherein, justice k. t. thomas, speaking for the court, laid down the law by observing thus in paragraphs 10 to 13: “10. it is axiomatic that condonation of delay is a matter of discretion of the court section 5 of the limitation act does not say that such discretion can be exercised only if the delay is within a certain limit. length of delay is within a certain limit. length of delay is within a certain limit. length of delay is no matter, acceptability of the explanation is the only criterion. sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. but it is a different matter when the first court refuses to condone the delay. in such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own findings even untrammelled by the conclusion of the lower court. 11. the reason for such a different stance is thus: the primer function of a court is to adjudicate the dispute between the parties and to advance substantial justice. time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 12. rules of limitation are not meant to destroy the right of parties. they are meant see that parties do not resort to dilatory tactics, but seek their damage caused by reason of legal injury. law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. time is precious and the wasted time would never revisit. during efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. so a life span must be fixed for each remedy. unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. law of limitation is thus founded on public policy. it is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). rules of limitation are not meant to destroy the right of the parties. they are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. the idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 13. a court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. there is no presumption that delay in approaching the court is always deliberate. this court has held that the words “sufficient cause” under section 5 of the limitation act should receive a liberal construction so as to advance substantial justice vide shakuntala devi jain v. kuntal kumari, air 1969 sc 575 and state of west bengal v. the administrator, howrah municipality air 1972 sc 749. it must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. that alone is not enough to turn down his plea and to shut the door against him. if the explanation does not smack of mala fides or it is put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. but when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. while condoning delay the court should not forget the opposite party altogether. it must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. it would be a salutary guideline that when courts condone the delay due to latches on the part of the applicant the court shall compensate the opposite party of his loss.” 6. this appellate board while considering an application for condonation of delay in the case of koninklijke philips electronics nv vs. kay kay home appliances pvt. ltd and anr., 2004 (29) ptc 601 (ipab) has referred to the above mentioned judgments of the apex court and observed at para 8 as under:- ‘8. from the above principle laid down by the apex court, the legal position is: (1) the word “sufficient cause” 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. 7. after careful consideration of the application for condoning delay and having regard to the above principles, we find that the delay is neither wanton nor deliberate. the appellant has stated that out of two identical orders passed by the second respondent, they have filed one appeal within the time limit, therefore there is no reason to impute any mala fide for not preferring the appeal in the second order. we do not see any benefit would have accrued to, or might have been taken by, the appellant by late filing the appeal. on the contrary, no prudent person would like to increase their liability to pay more fees for more delay and also take the risk of rejection of request for condonation of delay. we are unable to agree with the contention of learned counsel for the first respondent that each days delay has not been explained as explanation for each days delay is neither feasible nor necessary in so far as the explanation furnished does not smack of mala fide and we do not see any mala fide in the instant explanation. 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. while condoning delay, we should not forget the first respondent as they too would have incurred litigation expenses. we therefore award a sum of rupees two thousand towards costs to the first respondent. the appellant shall pay the cost of rs.2000/- to the first respondent within fifteen days form the receipt of copy of this order and file proof of such payment with the registry of this appellate board. 8. in view of the above, the application being c.o.d.no. 4/2008 is allowed subject to payment of above mentioned cost by the appellant and the registry is directed to take the appeal on record after proof of payment is filed by appellant. if the appellant fails to file the proof within a month from the despatch of copy of this order, the application for condonation of delay will stand dismissed.